I S S U E
0 4
R U L E
The Khmer Rouge trials
O F
L A W
|
H U M A N
R I G H T S
| B U S I N E S S A P R
2 0 1 9
Breaking the shackles
Has justice finally been done for a nation rocked by the violent Pol Pot regime?
How women in Asia are harnessing the innate power of the #MeToo movement
Life after the caliphate
Environment for change
What now for the legions of foreign ISIS supporters wishing to return home?
How a landmark case has placed climate change at the heart of traditional litigation
STAR POWER Busting the myths around China’s social credit system
32nd LAWASIA Conference 5 – 8 November 2019 | Hong Kong SAR For more details visit
www.lawasia2019.com
AJ04_Apr-2019_HouseAds.indd 1
29/3/19 9:32 am
AJ04_Apr-2019_HouseAds.indd 2
29/3/19 9:33 am
CONTENTS
Stay connected with LAWASIA Stay up to date on the go with our suite of tailored e-newsletters and active social media communities. Sign up today.
www.lawasia.asn.au
2
|
AJ04_Apr-2019_HouseAds.indd 5 p3-4_Contents_AJ04.indd 2
A P R I L 2 0 19
28/3/19 4:46 pm 28/3/19 6:08 pm
CONTENTS
April 2019
ISSUE 04
Features Photos (from top to bottom): Roland Neveu; Chris Gleisner
24
Orwellian nightmare or social utopia?
Asian Jurist Managing Editor Claire Chaffey deconstructs the hype surrounding China's so-called social credit system. Is it broaching dangerous territory when it comes to privacy and human rights, or are its critics overreacting?
38
32 ↑
The Khmer Rouge trials: justice at last? Journalist Melissa Coade examines the recent convictions of two Pol Pot regime war criminals and asks what it will take for Cambodia to heal from a cruel and bloody past.
Top trends in legal practice
A recent law and technology conference in Sydney, Australia, unearthed some fascinating emerging trends for the legal innovation and disruption space.
42
So tired of waking up tired
Airforce pilot Chris McBurnie examines the parallel needs of pilots and lawyers when it comes to fatigue and its impacts on performance – and why you can't afford to be tired at work.
38 A P R I L 2 0 19
4:46 pm
p3-4_Contents_AJ04.indd 3
|
3
28/3/19 6:08 pm
CONTENTS
46
Illumination Ideas, analysis and inspiration from leading legal commentators around the globe
#MeToo in Asia
64
Puja Kapai examines how women in Asia are fighting their own unique battles against violence and sexual harrassment.
52
Courage and the rule of law
Limitless
Arthur Moses issues a plea for those in stable legal systems to speak out against the subjugation of the rule of law.
58
Tom Bathurst AC reflects upon the accountability of the judiciary – who should be judging the judges?
64
Life after the caliphate
Professor Greg Barton argues that repatriating foreign fighters is an obligation we cannot afford to ignore.
70
Words of wisdom on careers, professional
Judging the judges
Climate change litigation
Martijn Wilder and Sharona Coutts report on how climate change is working its way into traditional areas of litigation.
Cover design: Michael Nguyen
4
p3-4_Contents_AJ04.indd 4
|
development, wellbeing and lifestyle
76
Regulars
06 From the President 08 From the Secretary-General 10
Contributors
12
News
18
Leadership
20
Opinion
88
LAWASIA
96
Inspiration
76
The power of introverts
Understanding the quiet ones.
78
Finding inspiration
Why it's so important for leaders.
79
Delivering feedback
Tricks and tips for hard discussions.
80 The power of green
What nature can do for our wellness.
82
Luxury destination
The Landmark Mandarin Hotel.
84
City guide
The energy and allure of Hong Kong.
Photos (clockwise from lef t to right): Lechatnoir/iStock; Zabelin/iStock
46
A P R I L 2 0 19
29/3/19 5:02 pm
AJ04_A
CONTENTS
LAWASIA Constitutional and Rule of Law Conference 23 – 24 August 2019 | Yangon, Myanmar For more details visit
www.ruleoflaw2019.com
A P R I L 2 0 19
AJ04_Apr-2019_HouseAds.indd 4 p3-4_Contents_AJ04.indd 5
|
5
28/3/19 4:46 pm 28/3/19 6:09 pm
FROM THE PRESIDENT
“In societies in which the rule of law is paramount ... there can be no room for capital punishment.”
W
hen news broke in October last year that the new Malaysian Government would be outlawing the death penalty, it was a momentous occasion. It is a brave and inspiring decision – and one which comes after many years of campaigning by the Malaysian Bar, LAWASIA, and numerous human rights groups which recognise the right to life and the fallibility of criminal justice systems in all jurisdictions. In November last year, at the 31st LAWASIA Conference in Siem Reap, Cambodia, LAWASIA's Council came together to pass a resolution calling on all jurisdictions within the United Nations Economic and Social Commission for Asia and the Pacific region that currently retain the death penalty – including China, Thailand and Pakistan – to review their policies on capital punishment, and to implement a moratorium on the death penalty while carrying out this review. In spite of a challenging diversity of views, laws and politics, the Council – in the collegiate spirit which has come to define LAWASIA – was successful in passing the resolution. While Malaysia has boldly taken the first steps towards abolition, many of its neighbours still turn to capital punishment. In fact, more people are put to death by the state in Asia than in any other region. In 2018, multiple citizens were executed in China, Japan, North Korea, Singapore, Taiwan, Thailand and Vietnam, among other countries. In some countries, the ways in which citizens meet their state-sanctioned end is brutal: by
6
p6-7_PresMsg_AJ04.indd 6
|
firing squad, public hanging, or even decapitation. Punishment by death is not and cannot ever be acceptable. All human beings possess the right to life. Death does not take into account variables or nuance of circumstance. The greatest argument against the imposition of the death penalty is that it leaves no room for error. Our justice systems, no matter how stable, efficient or transparent, are not infallible. Every day, guilty parties are acquitted and innocent parties are found guilty. Once the death penalty has been carried out, there is no going back. And at what cost? In the history of the death penalty, how many innocents have been deprived of life because of flaws in the justice systems to which they were subject? We will never know. The only thing we can be sure of is that in societies in which the rule of law is paramount and which place human rights front and centre of all laws and policies, there can be no room for capital punishment. I urge you to read the LAWASIA resolution on page 92 of this edition of Asian Jurist, and to add your voice to the growing chorus of dissent. Together we can make a difference.
CHRISTOPHER LEONG President, LAWASIA
A P R I L 2 0 19
28/3/19 5:41 pm
AJ04_A
FROM THE PRESIDENT
Join the LAWASIA community Uphold the rule of law. Advocate for human rights. Expand business opportunities. Become a LAWASIA member today. Visit lawasia.asn.au/membership
www.lawasia.asn.au/membership
A P R I L 2 0 19
AJ04_Apr-2019_HouseAds.indd 6 p6-7_PresMsg_AJ04.indd 7
|
7
28/3/19 4:47 pm 28/3/19 5:41 pm
F R O M T H E S E C R E TA R Y- G E N E R A L
“These projects and missions speak to the value of LAWASIA, and of the quiet influence that we ... have been able to exert on the rule of law within the region over the past 50-odd years.�
A
s the fourth edition of Asian Jurist reaches our members across the globe, LAWASIA is in a period of increased momentum. The 31st LAWASIA Conference, held in the incredible Cambodian city of Siem Reap in November, was a resounding success, following on from the record attendances at the 30th LAWASIA Conference held in Tokyo in 2017. In February this year, New Delhi played host to the 1st LAWASIA Human Rights Conference. The goodwill and enthusiasm exhibited there ensures there will be a second. In between these flagship events are myriad smaller but no less valuable events held throughout the region, all of which speak to the core values of LAWASIA and facilitate the strengthening of our regional community of legal professionals. While events are a core part of LAWASIA's raison d'etre, behind the scenes there is much more at play. Our advocacy work is also gaining momentum, with our statements, resolutions and osberver missions gaining traction, reach and respect. It is incredibly heartening that, after an initial failed attempt to enter the Maldives to conduct a fact-finding mission in 2018, the Maldivian Government has now invited LAWASIA into the embattled country to assist and collaborate with initiatives for judicial reforms and the establishment of an independent Bar Association. This is an extremely promising development.
8
p8-9_SGMsg_AJ04.indd 8
|
Members of the LAWASIA Executive Council were also able to travel to Sri Lanka late last year, with the intent of observing the Supreme Court proceedings on the hearing of petitions against the dissolution of Parliament by President Maithripala Sirisena. They had an opportunity to sit in on two days of hearing and also met with the Sri Lankan Speaker of Parliament. In another important initiative, LAWASIA is also working with the Yangon Bar Association in Myanmar to establish how we can be of assistance to the Rhakine state in terms of capacity building and the strengthening of the rule of law. Given the recent history of Myanmar, this is critical work. All of these projects and missions speak to the value of LAWASIA, and of the quiet influence that we, as a diverse and passionate community, have been able to exert on the rule of law within the region over the past 50-odd years. It is an exciting place to be, and we shall only grow stronger as we confront more challenges together.
MICHAEL TIDBALL Secretary-General, LAWASIA
A P R I L 2 0 19
28/3/19 6:12 pm
AJ04_A
F R O M T H E S E C R E TA R Y- G E N E R A L
I S S U E
0 1
R U L E
O F
L A W
|
H U M A N
R I G H T S
|
B U S I N E S S
I S S U E
0 2
R U L E
O F
L A W
|
H U M A N
R I G H T S
|
B U S I N E S S
A P R
2 0 1 8
I S S U E
|
FACING NE W CHALLENGES
PUSHING THE BOUNDARIES
REACHING NEW HEIGHTS
Why lawyers need to discard nostalgia and wake up to the global reality of change
2 0 1 7
|
|
FUTURE OF LAW
O C T
0 3
R U L E
O F
L A W
|
H U M A N
R I G H T S
|
B U S I N E S S
O C T
2 0 1 8
TECHNOLOGY
Does solving India’s access to justice crisis mean embracing bold technology?
LABOUR TRENDS
Is China leading a race to the bottom or setting standards for global labour? ISSUE 03 |
APR 2018
OCT 2018
OCT 2017
|
|
Why it’s every lawyer’s duty to advocate for an end to the death penalty in the region
ISSUE 02
ISSUE 01
DEATH PENALTY
Make way for automation
Empowering women lawyers in Nepal Lessons from the difficult and inspiring journey of Nepal’s female advocates
The state of LGBTQI rights in the region – and why demanding them is heroic
Taking on the big brands
How the push for transparency on the supply chain is shaping business and human rights
Big brother is watching Can a challenge to India’s surveillance laws salvage citizens’ right to privacy?
Hate speech, disinformation and fake news: can the law save us from the information offensive?
The death of democracy
Why lawyers can no longer ignore the growing superiority of artificial intelligence
The rainbow in Asia
A HATEFUL NARR ATIVE
How the Philippines’ war on drugs is exploiting legal processes to destroy rights
A portrait of trauma and tragedy An on-the-ground account of daily life in one of Bangladesh’s Rohingya refugee camps
Saving Cambodia’s kids Conflict and trauma give way to a renewed effort to save the next generation
Tortoise and the hare
Why the delivery of legal services must keep pace with global business giants
A very superior lawyer
The bold Chinese law school producing elite graduates ready to take on the world
Missed an issue? It’s no fun when there’s a gap in your collection. Contact aj@lawasia.asn.au to get hold of Asian Jurist back issues.
A P R I L 2 0 19
AJ04_Apr-2019_HouseAds.indd 10 p8-9_SGMsg_AJ04.indd 9
|
9
28/3/19 4:47 pm 28/3/19 6:12 pm
Contributors RULE OF L AW | HUMAN RIGHTS | BUSINESS
Managing Editor Claire Chaffey Legal Editor Klara Major Senior Journalist Melissa Coade Art Director Michael Nguyen Legal Policy Lawyer Ella Howard Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Secretariat Level 11, 170 Phillip Street, Sydney, NSW 2000, Australia P: +61 (02) 9926 0165 F: +61 (02) 9223 9952 E: lawasia@lawasia.asn.au twitter.com/LAWASIA_alerts facebook.com/lawasiaassociation linkedin.com/company/lawasia Š 2019 LAWASIA. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of LAWASIA.
Claire Chaffey
Melissa Coade
Claire Chaffey is a former lawyer, journalist and editor, and Asian Jurist's founding managing editor. She began her career as a Sydney-based lawyer practising primarily employment and immigration law. Changing direction to become a journalist, Claire moved to Accra, Ghana, where she reported on human rights and social issues for the Ghanaian Times before returning to Australia to work as a legal affairs reporter. She now edits the Law Society of New South Wales' multi-award-winning magazine LSJ, and launched Asian Jurist in 2017. On page 24 of this edition, Claire delves into the controversy surounding the implementation of China's so-called social credit system. A complex, pervasive and oft-misunderstood system, Claire asks whether the media hype surrounding the potential privacy and human rights impacts are justified – or is there something else at play?
Melissa Coade is a Sydney-based journalist and writes for the Law Society of New South Wales' magazine, LSJ. She has a background as a legal reporter for an Australian news publisher and is admitted as a lawyer in NSW. In 2015, Melissa lived and worked in Phnom Penh, Cambodia, as a Governance/Women Peace & Security intern for the UN Women Cambodia Country Office. She also undertook an internship with the Office of the Co-Prosecutors for the United Nations Assistance to the Khmer Rouge Trials. She has experience in Australian domestic criminal defence and has clocked hours doing journalism internships with Ten News Sydney and the Phnom Penh Post. Melissa's mother and her family, who came to Australia after years living in a Thai refugee camp post-1979, are survivors of the Khmer Rouge. She writes about the impact of putting the regime's top leaders on trial on page 32.
Opinions are not the official opinions of LAWASIA unless expressly stated. LAWASIA accepts no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own enquiries in
Have an idea for Asian Jurist?
making decisions touching their own interest. Asian Jurist is proudly produced in partnership
We are looking for contributors to expand our global network of exceptional writers and legal experts.
with The Law Society of New South Wales.
Contact managing editor Claire Chaffey at aj@lawasia.asn.au to discuss your editorial ideas.
10
|
A P R I L 2 0 19
p10-11_Contributors_AJ04.indd 10
28/3/19 6:10 pm
CONTRIBUTORS
Akram Sheikh
Greg Barton
Puja Kapai
Martijn Wilder
Mohammad Akram Sheikh is a Senior Advocate of the Supreme Court of Pakistan, founding President of the Supreme Court Bar Association of Pakistan, former Chief Executive of the Pakistan Bar Council, an active member of the American Bar Association, and a former Ambassador-at-Large to the Government of Pakistan (19931997). Sheikh has a long history with politicians and the courts. Between 1997 and 1999, he actively opposed the government’s decision to establish military courts to trial terrorism cases. He led the prosecution of Pakistan’s former strongman, the retired General Perves Musharraf, on treason charges. A recent case that Sheikh is best known for was the Memogate matter, where he acted for a PakistaniAmerican businessman who had alleged that Pakistan’s former ambassador in Washington (on the advice of the Pakistani President) called for the US to help prevent a military intervention in domestic politics. Sheikh is a vocal commentator on independence of the judiciary, human rights and the rule of law. On page 20, he considers the part individuals must play to combat the injustices brought about by climate change.
Greg Barton is Professor in Global Islamic Politics at the Alfred Deakin Institute for Citizenship and Globalisation, Deakin University (Australia). He is considered one of Australia's leading counter terrorism researchers. His research is concerned with Islam, civil society and democratisation, religion and modernity, and with countering violent extremism, with a particular focus on Indonesia, Turkey and Asia. Over the past 30 years, he has undertaken extensive research on Indonesian politics and society, especially on the role of Islam as both a constructive and a disruptive force. The central axis of his research interests is the way in which religious thought, individual believers, and religious communities respond to modernity and the modern nation state. He has a strong general interest in international relations, democratisation and comparative international politics. On page 64 of this issue, he argues that allowing ISIS fighters and their families to return to their country of origin is an obligation we cannot afford to ignore.
Puja Kapai is Associate Professor and Convenor of the Women’s Studies Research Centre at the Faculty of Law of the University of Hong Kong. Her expertise lies in human rights law and her teaching, research and social justice advocacy focuses on the rights of marginalised communities in relation to gender, race, religion, sexuality, and citizenship. She has regularly appeared before the Hong Kong Legislative Council to present on issues impacting ethnic minorities, women and children, as well as before various UN treaty bodies for their hearings on Hong Kong. She received the International Women of Courage Hong Kong Award 2015 from the US Consul General, HKU Faculty of Law’s Outstanding Teaching Award 2016, and its Knowledge Exchange Award 2017 in recognition of her contribution to teaching and the impact of her work in the community. On page 46, she examines the trajectory of the #MeToo movement in Asia and the importance of understanding developments within their distinct legal, social, and cultural contexts.
Martijn Wilder is regarded as a legal pioneer in the development of climate change law and is Head of Baker McKenzie’s Global Environmental Markets and Climate Change practice. Martijn is also Adjunct Professor of Climate Change Law at the Australian National University, Chair of WWF (Australia), Chair of the Australian Renewable Energy Agency, and Director of the Climate Council. In 2012, Martijn was awarded a Member of the Order of Australia in recognition of service to environmental law. Co-author Sharona Coutts is a graduate lawyer at Baker McKenzie and a former investigative reporter and editor whose work has appeared in the New York Times, Los Angeles Times, and on national radio and television programs in the United States, United Kingdom, and Australia. She served as Associate to the Hon. Michael McHugh at the High Court of Australia. On page 70 of this issue, Martijn and Sharona examine a recent landmark Australian judgment that highlights the growing ‘mainstreaming’ of climate litigation around the world.
A P R I L 2 0 19 |
p10-11_Contributors_AJ04.indd 11
11
28/3/19 6:10 pm
Regional news Notifiable Data Breaches scheme: one year in The Office of the Australian Information Commissioner (OAIC) has released its first quarterly report on the Notifiable Data Breaches (NDB) scheme, which came into force on 22 February 2018. The NDB scheme applies to all agencies and organisations with obligations to secure personal information under the Privacy Act 1988 (Cth). The scheme imposes an obligation to notify individuals when their personal information is involved in a data breach that is likely to result in serious harm, referred to as an “eligible data breach”. Agencies and organisations must also provide affected individuals with recommendations about the steps they should take after becoming aware of the data breach – for example, changing user names or passwords. In addition to notifying affected individuals, the agency or organisation is also required to notify the OAIC of any eligible data breach. The quarterly report shows that in the first six weeks of the scheme the OAIC received 63 data breach notifications. The acting Australian Information Commissioner and acting Privacy Commissioner, Angelene Falk, said, “[j]ust over half of the eligible data breach notifications we received in the first quarter indicated that the cause of the breach was human error”. 12
|
The top sector that notified the OAIC of an eligible data breach in the reporting period was health service providers, followed by legal, accounting and management services. Seventyeight per cent of the eligible data breaches involved individual contact information. Falk has emphasised that the “risk of a data breach can be greatly reduced by implementing practices such as Privacy Impact Assessments, information security risk assessments, and training for any staff responsible for handling personal information”.
DATA
Chinese campaign to limit data collection The Cyberspace Administration of China, the Ministry of Industry and Information Technology, the Ministry of Public Security and the State Administration for Market Regulation have jointly announced a campaign to prevent apps from unlawfully collecting and processing personal data. The China Daily has reported that the campaign will focus on apps relating to e-commerce, navigation, delivery and ticketing. The campaign emphasises that app operators must abide by the Chinese Cybersecurity Law. App operators should not ask users for irrelevant personal information. The app’s terms and conditions of data collection should be clearly set out for users to understand and decide whether they wish to consent. The organisations will review a large number of major apps to evaluate whether there is excessive collection or use of data, and whether users are being forced to provide irrelevant personal information. App operators that breach existing laws will be referred to the relevant authorities. Those apps that pass inspection will be verified and may be promoted to users on search engines or app stores.
Photos from lef t to right: South Agency/iStock; Ansonsaw/iStock
PRIVACY
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 12
28/3/19 5:41 pm
REGIONAL NEWS
HEALTH
ENVIRONMENT
Malaysia joins war on sugar Many governments around the world have been considering the introduction of a “sugar tax” to target high-sugar soft drinks and reduce consumers’ sugar intake. From 1 April 2019, Malaysia will join countries that impose an excise tax on sweetened beverages. The tax will apply to non-alcoholic beverages containing added sugars exceeding five grams per 100 millilitres and juices that contain more than 12 grams per 100 millilitres. In his 2019 Budget Speech, Malaysia’s Finance Minister Lim Guan Eng noted that statistics from the Ministry of Health showed that nearly one in two Malaysians is overweight or obese. This new measure is intended to reduce that figure. The tax follows similar efforts by other countries in the region. In 2017, Thailand introduced a tax on sugary beverages. Reuters reported that previously Thailand’s imported beverages were taxed at a rate of 20 per cent. The new policy reduced the tax to 10 per cent but with an added tariff on beverages with over 6 grams of sugar per 100 millilitres. In 2018, the Philippines also
Court's dam go-ahead to endanger orangutans
introduced taxes on sugar-sweetened beverages. The World Health Organization supported this tax, saying it may help reduce obesityrelated premature deaths and improve financial wellbeing in the Philippines. Other countries have been considering alternative mechanisms to address rising obesity rates. South Korea and Hong Kong have introduced labelling systems for processed food, which is intended to make the nutritional content clearer to consumers. Last year, the Singaporean Ministry of Health started public consultation on possible measures to address obesity that include banning and taxing some sugar-sweetened beverages, mandatory labelling, and changing existing regulations to make it more difficult to advertise less healthy food and drink to children.
The Indonesian Forum for the Environment has lost a challenge to the decision of the North Sumatran administration to approve the construction of a hydropower dam in the Batang Toru Forest. The dam will supply electricity to the North Sumatran province. Reports from the Jakarta Post say the dam will be built by Chinese state-owned firm Sinohydro. According to the Jakarta Post, the presiding judge, Jimmy C Pardede, said the judges reject every part of the plaintiff’s lawsuit and that the proposal detailing the environmental impact of the project was in accordance with existing regulations. The Batang Toru forest is part of the Barisan mountain range in Sumatra and home to all 800 of the world’s wild Tapanuli orangutans as well as Sumatran tigers and agile gibbons. The plaintiff's expert witness argued that the dam would separate the already small orangutan population and put them on “a firm path to extinction”. The Indonesian Forum for the Environment has said it will appeal the decision.
Gasping for air in Asia 2 per cent
of total municipal solid waste generated in Mumbai, India, is openly burned on the streets.
30 per cent
of global carbon dioxide emissions came from China in 2014.
7 million
premature deaths occur globally every year due to black carbon, ozone and methane emissions.
USD 9 billion in losses were suffered due to Indonesia's 1997–1998 wildfires.
Source: UN Environment Programme GEO-6 Global Environment Outlook: Regional assessment for Asia and the Pacific
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 13
|
13
28/3/19 5:41 pm
REGIONAL NEWS
PRIVACY
Thailand passes legislation protecting personal data
14
|
ADVERTISING
New Zealand ad regulation targets influencers From 1 February 2019, all advertising in New Zealand must comply with the New Zealand Advertising Standard Authority’s (ASA) new Advertising Standards Code. The Code is primarily concerned with two principles: • social responsibility – ads must be “prepared and placed with a due sense of social responsibility to consumers and society”; and • truthful representation – ads must be “truthful, balanced and not misleading”. The Code’s definition of an advertisement is very broad and includes “any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence the choice, opinion or behaviour of those to whom it is addressed”. The Code requires that advertisements must be clearly identifiable as advertisements. Where
it is not obvious or well understood by an audience that the content is an advertisement, all parties to the advertisement are responsible for ensuring the audience is aware they are engaging with an advertisement. The Guidance Note, published by the ASA to accompany the Code, particularly notes the role of “influencers” in advertising and the confusion that can be caused where their content appears to have independence but may in fact be the result of a financial arrangement with a brand or service. In cases where the brand or service has control over the content of the influencer’s communication, the content must be identified as an advertisement. If an influencer fails to disclose that the content is advertisercontrolled, the brand may be at risk of a complaint to the ASA. Any complaints about content in breach of the Code are considered by the ASA.
Photos from lef t to right: The Lightwriter/iStock; Sasin Paraksa/iStock; Martin Wimmer/iStock
On 28 February 2019, the Thailand Personal Data Protection Act was approved by the National Legislative Assembly. The Act is the first consolidated piece of legislation governing data protection in Thailand, and is concerned with “personal data”. Personal data is any data relating to a person that enables the identification of that person, whether directly or indirectly. It does not include data of a deceased person or business information. Like the EU General Data Protection Regulation, the Thai legislation will have extraterritorial application. Overseas data controllers and processors may be subject to the legislation if they offer goods or services to data subjects in Thailand. They may also be subject to the legislation if they monitor any behaviour that takes place in Thailand. The legislation also addresses matters such as the collection of consent of the data subject, parental consent for minors, and specific requirements for sensitive personal data (including genetic and biometric data). Breach of the legislation can result in civil liability and administrative fines.
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 14
28/3/19 5:42 pm
REGIONAL NEWS
MEDIA
Myanmar report highlights key role of social media UN Special Rapporteur Yanghee Lee has provided an updated report on Myanmar and highlighted the significant and complex role of social media in supporting human rights. The Special Rapporteur’s report, presented to the Human Rights Council in March 2019, sheds light on developments in Myanmar since previous reports in June and September 2018. Despite the Government of Myanmar having withdrawn cooperation with the Special Rapporteur, Lee continues to seek to engage with Myanmar and assist with addressing human rights issues. The report expresses concern about the institutionalisation of hate speech in Myanmar and the role of social media. The Special Rapporteur noted that Facebook has taken steps
Facebook has taken steps to address its impact in Myanmar. However, concerns remain that the platform has not explained why it removes certain content from its site and not other content.
to address its impact in Myanmar, including commissioning a human rights impact assessment. However, concerns remain that Facebook has done little to explain why it removes certain content from its site and not other content. The Special Rapporteur particularly noted that in February 2019 Facebook designated several groups as dangerous groups, with the result that those groups were banned from Facebook and all related praise, support and
representation of those groups was also removed. Lee noted that, as all the affected members are groups of the Northern Alliance, this selective banning may contribute to feelings of inequality by ethnic minorities. The Special Rapporteur has recommended that social media platforms, including Facebook and Twitter, respect human rights and conduct due diligence so they fully understand the Myanmar content and can act responsibly.
The status of same-sex relationships in Brunei 3 April 2019
New Sharia laws in Brunei will allow whipping and stoning to death for same-sex relationships.
10 years
imprisonment is the criminal punishment that homosexuality can attract in the sultanate.
2014
Brunei became the first East Asian country to introduce Islamic criminal law.
67 per cent
of Brunei's population of 400,000 are Muslim.
Source: ABC News
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 15
|
15
28/3/19 5:42 pm
REGIONAL NEWS
Asia Pacific performs poorly on corruption scale Transparency International has released its 2018 Corruption Perception Index. This index ranks 180 countries and territories by the perceived levels of public sector corruption, according to surveys and expert assessments. The index uses a scale from 0 to 100 where 0 is highly corrupt and 100 is free from perceived corruption. Denmark and New Zealand are at the top of the index with 88 and 87 respectively. However, more than twothirds of countries have scored below 50, with an international average score of 43. In the Asia-Pacific region, New Zealand is followed by Singapore and Australia with scores of 85 and 77 respectively. For three consecutive years the Asia Pacific region has had an average score of 44. Transparency International has attributed the lack of improvement to an overall weakening of democratic institutions and political rights in the region. While the average score remains the same, some nations in the region have improved their individual scores over the past year. The Solomon Islands has increased its score by five points to 44. Transparency International attributes this improvement to successfully passing a comprehensive anticorruption law, including provisions for an anti-corruption commission. Vanuatu, with a score of 46, has also increased its score since last year as a result of enacting new legislation to improve access to information. South Korea has improved by three points since 2017 to achieve a score of 57. North Korea is at the bottom of the index with a score of 14. It is followed by Afghanistan, with a score of 16, and Cambodia with a score of 20. 16
|
To tackle online censorship in China, #RiceBunny (pronounced "mi tu") is used by Chinese women to expose sexual harassment. Source: The Conversation SEXUAL HARASSMENT
China responds to #MeToo A study conducted by Beijing Yuanzhong Gender Development Center has found that nearly 40 per cent of women in China have experienced sexual harassment in the workplace. However, the Center’s review of over 50 million publicly-available court verdicts in the period 2010 to 2017 revealed only 34 cases dealing with sexual harassment. Of those cases, only two were brought by victims suing alleged harassers. This small number of cases indicates that people in China face difficulty seeking legal redress for sexual harassment. This difficulty can be attributed, in part, to existing legislation. While China has legislation that bans sexual harassment in the workplace, those laws do not have clear definitions and do not provide clear causes of action. Changes to legislation at both the national and local levels may improve this situation and help victims of sexual harassment in the workplace to seek redress. At a national level, China is currently preparing the Draft Civil Code, which is intended to govern all aspects of Chinese private life. The Code will contain provisions prohibiting sexual harassment in the workplace. A draft of the relevant provisions was released in September 2018 for public review and comment. That draft contains what may become China’s
first national definition of sexual harassment, which is “unwelcome behaviour against another person by sexual language or actions or by sexual advances against a subordinate”. This definition would go beyond existing legislation by offering all employees protection from sexual harassment, including male employees. The Draft Civil Code also requires employers to take reasonable measures against sexual harassment in the workplace. While the most recent draft does not provide details of this requirement, commentators have indicated that it is likely to go beyond existing law. Currently, the existing legislation simply provides that employers must seek to prevent and stop sexual harassment against female employees in the workplace. Initiatives are also taking place in China at the local level. In July 2018, the province of Jiangsu enacted legislation that imposed a duty on companies to address sexual harassment in the workplace. The Special Provision on Labor Protection of Female Workers in Jiangsu Province provides a clear definition of sexual harassment and requires companies to develop and implement internal guidelines prohibiting sexual harassment along with establishing an internal mechanism for complaints.
Photos from lef t to right: Natanael Ginting /iStock; Morsa Images/iStock
CORRUPTION
#Rice bunny
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 16
28/3/19 5:42 pm
REGIONAL NEWS
CONSTITUTION
Name change for Cook Islands? The Cook Islands is considering a name change to better reflect the country’s culture. A name change committee has received public submissions with alternative names and is planning to agree on a preferred name to submit to the government for consideration. The Cook Islands Deputy Prime Minister, Mark Brown, has said he is happy to look at a traditional name for the country which “more reflects the true Polynesian nature” of the nation. It is likely a referendum will be required to approve and change the nation’s name. The Cook Islands previously held a name change referendum in 1994. While that referendum failed,
The Guardian has reported that Committee Chair Danny Mataroa said chiefs from all 12 of the country’s inhabited islands are taking part in the current process and the push for change is stronger than ever. The Cook Islands is a nation made up of 15 islands in the South Pacific Ocean. British navigator Captain James Cook landed on the islands in the 1770s. He named them the “Hervey Islands” but, from the 1820s, British documents refer to the islands as the Cook Islands. The nation was a British Protectorate until 1888 and part of the boundaries of New Zealand from 1901 to 1965, when it became self-governing. The latest UN estimates suggest the current population is around 17,400 people. In recent years, the Cook Islands have become increasingly popular as a tourist destination. January this year saw a 6.3 per cent increase in visitor arrivals compared to the previous January, with a total of around 10,128 visitors. Figures released by the Ministry of Finance and Economic Management show the majority of visitors were from New Zealand, followed by Australia and Europe.
RETIREMENT
Singapore to raise retirement age Singapore may raise the retirement age for workers following the recommendations of a working group. Singapore’s Manpower Minister, Josephine Teo, told Parliament a group consisting of government, trade unions and employers had reached a consensus on the need to raise the retirement age. Singapore has one of the world’s fastest-ageing populations. The current retirement age is 62 but, by law, companies must offer eligible employees an option to continue working until they are 67, referred to as the re-employment age. The proposed increase would apply to both the retirement age and the reemployment age. Minister Teo indicated that a higher retirement age would motivate both workers and employers to invest in keeping workers in roles for longer, including skills upgrading. The timing of the changes will be carefully considered to allow forward planning by businesses and employees.
People-power across the Asia Pacific 15
of the world's 28 mega-cities (with more than 10 million people) are in the Asia Pacific.
42 per cent
of the population in the Asia Pacific was urban in 2014.
50 per cent
of the 30 million migrant workers in the Asia Pacific are women.
63 per cent
is what the urban population in the Asia Pacific is expected to increase to by 2050.
Source: UN Environment Programme GEO-6 Global Environment Outlook: Regional assessment for Asia and the Pacific
A P R I L 2 0 19
p12-17_Regional-news_AJ04.indd 17
|
17
28/3/19 5:42 pm
LEADERSHIP
FUTURE OF LAW
The future of the legal profession – it's now Traditional law firms will soon strike trouble if they refuse to change, writes WIEBE DE VRIES.
Demystifying technology
Many experts feel that technology would replace most of today’s workforce, including lawyers. But none of these experts have come up with a widely accepted replacement to date. The approach to technology should, however, be different – more positive. Let’s not fear that technology could eventually replace us, but look proactively at how we can integrate it into our business model. As lawyers, we should be looking at how to make good use of it to improve our services and build trust with clients. Our solutions are no longer assessed based solely on legal expertise. Clients expect a greater understanding of their business, faster response time and efficiency. Often the legal aspects are only a part of the solution to clients while the rest does not even involve legal knowledge. We are shifting from the day-to-day practice of law to a more business-oriented model where legal services are profoundly embedded in 18
|
p18-19_Leadership_AJ04.indd 18
the business of clients. The good news? Technology can help. Even better: lawyers start to develop a positive attitude towards technology. But we are in for the long haul. The International Association of Young Lawyers (AIJA), with the help of the Council of Bars and Law Societies in Europe (CCBE), recently conducted a survey among international lawyers between the ages of 25 and 45. The findings reveal that compared to 2016, lawyers are less fearful of technology replacing them (decrease of 43 per cent). They also show that almost half of all respondents (42 per cent) are confident that their firms are taking the necessary measures to integrate tech such as AI tools, automation or the cloud into their workflow. However, implementation of technology remains low. So, we could say that law firms know what they need to do. And lawyers are most definitely willing to embrace technology. But again, we don’t know yet how to do it. From this perspective, technology providers could do more for the legal profession. And there are plenty of opportunities. According to the same survey, only 3 per cent of respondents agree that the training of lawyers is sufficiently adapting to the changing landscape of the legal market. More training seems required to adapt accordingly and ensure that lawyers know how to use the latest innovations in technology to benefit their clients and business.
As the market for technologyenabled innovations continues to grow, so does the market for non-traditional legal service providers. Eighty-six per cent of lawyers see this as a threat to the profession and believe firms are more likely to employ non-lawyers to service clients in the name of cost-efficiency and making use of new technologies, according to the survey. This can be, in fact, an opportunity to expand the legal service markets of our law firms – the same for interdisciplinary partnerships. There is untapped potential there. Law firms should look more at the industries that are already leading the digital revolution.
Mystery of millennials
Another driving force of change in the legal profession is the generational shift in the workplace. Much more impatient, more demanding and keener for flexibility, millennials are here to stay.
Photo: Visual Space/iStock
T
he future is now for the legal profession. With automation, artificial intelligence (AI), blockchain, the rise of nonlawyers in the legal profession and the generational shift in the workforce, change is happening faster than in the past. While it is not without challenges, law firms are slowly forging a path of their own in this rapidly evolving world.
A P R I L 2 0 19
28/3/19 5:44 pm
LEADERSHIP
By 2025, they will account for 75 per cent of the global workforce according to global research. Millennials will soon take over leadership positions and partnerships in law firms. But then how can law firms best manage millennials, a tech-savvy and dynamic generation? This younger generation is generally marked by an increased familiarity with digital technologies. They usually seek organisations that foster innovation, develop their skills and make a positive contribution to society. These features are generally difficult to manage in law firms which are often heavily driven by hierarchy. It was a very different environment in 2005 when I started. In my early days as a lawyer, hierarchy, paperwork, and – maybe – a predominant fear of change and innovation were driving the organisational structure. A 'four-eyes' principle meant that four eyes had to read the same piece of paper and, even as a trainee, we needed to sign off on
“The younger generation is marked by an increased use and familiarity with digital technologies. They seek organisations that foster innovation.” every piece of (printed) email, letter and fax that crossed our desks. Happily, times have changed. We see law firms slowly but surely adapting to the latest innovation trends in the workplace. The younger generation can be a huge opportunity in this evolution
process. Millennials can bring a fresh perspective and new ideas which can have a positive impact on the business and the relationship with clients. Senior-level lawyers are here to stay for a little while, too. This is why firms should be looking for ways to ensure collaboration between the generations and create a space for their younger lawyers to grow. Reverse mentoring, for instance, can facilitate a better understanding between the generations. Younger lawyers and their more seasoned colleagues can teach one another about the business and practice of law. This is how law firms can predict the likes, dislikes, ways of working of the next generations and ensure a thriving work environment for all their employees, regardless of their age. However, it seems it will take some more work for law firms to adequately equip themselves for the younger generation, through such orientation and mentoring programmes or even more flexible working conditions. I believe we will eventually get there. It probably goes without saying that the traditional law firm won’t stand a chance against the numerous changes in the legal profession: boutique firms allow their employees to have access to stellar legal tech innovations on a subscription now and can compete with global firms. The need for big teams to perform a due diligence or discovery is no longer there, which still is one of the driving elements of a traditional law firm business model. What is sure, firms that take a long-term perspective and proactively seek opportunities to embrace innovation will ensure profitability and sustainability of their business in the future, both for their clients and their future leadership. As we are so used to solving challenges for our clients, it is now our turn to solve our own and create a more sustainable future for our profession. Wiebe De Vries is a tax and civil lawyer based in The Netherlands and is the AIJA Immediate Past President. He spoke at the 2018 LAWASIA Conference in Siem Reap, Cambodia.
A P R I L 2 0 19
p18-19_Leadership_AJ04.indd 19
|
19
28/3/19 5:44 pm
OPINION
CLIMATE CHANGE
In the hands of the individual
While states and corporations all have differentiated responsibility to tackle climate change, individuals must be the ones creating meaningful momentum for action, writes MOHAMMAD AKRAM SHEIKH.
20
p20-23_Opinion_AJ04.indd 20
|
Law is a synthetic phenomenon without moral individualistic support. Law needs flawless infrastructure and resources for its enforcement. Richard Somerville, while writing on the ethics of climate change, said, “In reality, the science of climate change, no matter how advanced, will never be sufficient to tell humanity what to do. Science may be able to inform policy by forecasting how severe climate change will be, given different greenhouse gas levels. However, experience teaches that science alone is never enough. “When confronting environmental challenges, considerations of fairness, equity, and justice must also inform any successful international agreement. This is certainly true of three major ethical dilemmas now complicating the climate change debate: how to balance the rights and responsibilities of the developed and developing world; how to evaluate geo-engineering schemes designed to reverse or slow climate change; and how to assess our responsibility to future generations who must live with a climate we are shaping today.” Climate justice encompasses the disproportionate impact of climate change on poor and marginalised populations, while climate equity refers to the question of who should
bear the burden of responsibility for addressing climate change. These twin concerns have both intranational and international dimensions. Climate change will negatively and disproportionately impact poor and marginalised people within national borders, as well as cause conflict between nations, regions and cities that are more or less vulnerable to climate disruptions.
The rise of water conflicts
The management of land and natural resources is one of the most critical challenges facing developing countries today. The exploitation of high-value natural resources, including oil, gas, minerals and timber, has often been cited as a key factor in triggering, escalating or sustaining violent conflicts around the globe.
Photo: Supratim Bhattacharjee/iStock
C
an we exclusively blame human beings as by-andlarge responsible for climate change? Can we blame industrialisation, modernisation, and inventions in the realm of information technology and weaponry? These are complex questions. This earth was not gifted to us with a perfectly balanced climate. But we are living in an era where humans have most certainly contributed to climate change – and we now want to reverse it through conscious global efforts. The human community should and must respect and preserve the environment that nature has bestowed. We must take urgent action to reverse the course of climate change that is already threatening our very existence. We all must promote the agenda for the welfare of Earth, and individuals must take responsibility. We must not wait for states to take the lead. All states have environmental laws and enforcement mechanisms. The Indian constitutional courts, for example, have delivered excellent judgments, and good legislation has been developed. Pakistani High Courts have "green" benches but, unfortunately, Lahore and Delhi are still facing fog and smog because of poor implementation of green laws.
A P R I L 2 0 19
28/3/19 5:45 pm
OPINION
Fishermen are trying to pull the boat towards the shore amidst rough sea waves at Orissa, India.
Furthermore, increasing competition over diminishing renewable resources, such as land and water, are on the rise. This is being further aggravated by environmental degradation, population growth and climate change. The mismanagement of land and natural resources is contributing to new conflicts and obstructing the peaceful resolution of existing ones. Non-violent resolution of conflict is possible when individuals and groups trust their governing structures to manage incompatible interests. When mechanisms for managing and resolving them break down, conflict becomes problematic and may give way to violence. Weak institutions, fragile political systems and divisive social relations can perpetuate cycles of violent conflict.
Preventing this spiral and ensuring the peaceful resolution of disputes is a core interest of both individual states and the international community. In 2007, UN Secretary General Ban Ki-moon described the conflict in Sudan’s Darfur region as the world’s first climate change conflict. The assumption was that water scarcity from changed rainfall patterns resulting from climate
“The science of climate change, no matter how advanced, will never be sufficient to tell humanity what to do.”
change contributed to this conflict. His thinking reflects findings to date that the incidence of conflict is likely to be higher in years of lower precipitation. In numerical terms, a 1 per cent increase in temperature leads to a 4.5 per cent increase in civil war in the same year, and a 0.9 per cent increase in the following year. By the year 2030, based on averaged data from the 18 climate models used, this will translate to approximately a 54 per cent increase in armed conflict incidence in the region. The researchers argue that conflict will emerge from economic uncertainties due to temperaturerelated yield declines in societies heavily dependent upon agriculture. Research to date has found that “economic welfare is the single factor most consistently associated with conflict incidence”.
A P R I L 2 0 19
p20-23_Opinion_AJ04.indd 21
|
21
28/3/19 5:45 pm
OPINION
22
p20-23_Opinion_AJ04.indd 22
|
Af ter several nights of heavy rain fall, plastic waste block sewerage lines in the slums of Dhaka, the capital of Bangladesh and one of the most densely populated cities in the world.
water and oil is likely to be an increasing driver of change between now and 2030 – and beyond. Climate change will exacerbate the challenge in all of these areas, and the combined effect of these changes is likely to put tens to hundreds of millions of people at risk of hunger, disease, displacement, injury, poverty or other forms of hardship. As the contemporary world is increasingly becoming conscious of the link between climate change and water conflicts, it is time to divert sizable resources of states, multinationals, conscious and financially strong individuals to come forward and develop an equitable and just climate justice system based on the fundamental needs of human and other species, irrespective of boundaries of states and narrow national interests. Earth is a common living place for all, and we all are responsible to protect it. We must develop a global justice system on the principles of fairness and equity. Conflicts and wars can further polarise and complicate the world and its inhabitants. The recipes of love, sharing, sacrifice and peace must be
the face of the present-day states. The world’s most celebrated physicist and cosmologist, Stephen Hawking, issued a call for humans to “continue to go into space for the future of humanity. I don’t think we will survive another 1,000 years without escaping beyond our fragile planet. We will need to adapt, rethink, refocus and change some of our fundamental assumptions about what we mean by wealth, by possessions, by mine and yours. Just like children, we will have to learn to share,” he wrote.
Human rights and climate change The Office of the United National Human Rights Commissioner (HRC) in its 5th Assessment Report (2014), the Intergovernmental Panel on Climate Change (IPCC), unequivocally confirmed that climate change is real and that human-made greenhouse gas emissions are its primary cause. The report identified the increasing frequency of extreme weather events and natural disasters, rising sea levels, floods, heat waves, droughts, desertification, water shortages, and
Photos (from lef t to right): Fabeha Monir/iStock; Jen Grantham/iStock
Many millions of people are today experiencing the double vulnerability of conflict and climate change. This combination of climate change and armed conflict means vulnerable civilian populations have to survive conflict and climate change simultaneously. Pastoralists and the rural poor, who are already living at the margins of environmental feasibility, can be pushed beyond their limits by the impact of armed conflict, such as the deprivation of their lands for cultivation and grazing as well as by forced displacement, pillage and indiscriminate attacks. At the same time, vulnerable communities gradually recovering from armed conflict by replanting their fields or restocking their herds are often hit again by the effects of climate variability, like drought or erratic and destructive rains. The impact of conflict can also set back people’s adaptation strategies by destroying infrastructure, capital, assets and livelihoods that are vital to positive forms of adaptation. Bangladesh, India, China, Maldives, Vietnam, Afghanistan, Pakistan, Somalia, Ethiopia, Eritrea, Sudan, Democratic Republic of Congo, Central African Republic, Egypt, Libya and Kenya are the focus of most of the literature on conflict and climate change. As contentious as the term ‘climate refugees’ has been the question of how many such refugees can be expected in the future. Many analysts have focused on a figure of 200 million ‘climate refugees’ by 2050. This figure has been challenged, however, for example by a 2008 International Organization for Migration study which noted that the figure exceeds the current global total of 192 million people who have migrated, and that “the consequences of climate change for human population distribution are unclear and unpredictable” – particularly in view of the non-linear and frequently abrupt nature of past climate changes. Even before climate change is taken into account, scarcity of land, food,
A P R I L 2 0 19
28/3/19 5:45 pm
OPINION
the spread of tropical and vector-borne diseases as some of the adverse impacts of climate change. These phenomena directly and indirectly threaten the full and effective enjoyment of a range of human rights by people throughout the world, including the rights to life, water and sanitation, food, health, housing, self-determination, culture and development. The negative impacts of climate change are disproportionately borne by persons and communities that are already in disadvantageous situations owing to geography, poverty, gender, age, disability, cultural or ethnic background, among others, and who have historically contributed the least to greenhouse gas emissions. In particular, persons, communities and even entire states that occupy and rely upon low-lying coastal lands, tundra and Arctic ice, arid lands, and other delicate ecosystems are at-risk for their housing and subsistence face the greatest threats from climate change. A human rights-based approach calls for accountability and transparency. It is not only states that must be held accountable for their contributions to climate change but also businesses which have the responsibility to respect human rights and do no harm in the course of their activities. States should make their adaptation and mitigation plans publicly available, and be transparent in the manner in which such plans are developed and financed. Accurate and transparent measurements of greenhouse gas emissions, climate change and its impact, including human rights impacts, will be essential for successful rights-based climate change mitigation and adaptation efforts. Because of the impacts of climate change on human rights, states must effectively address climate change in order to honour their commitment to respect, protect and fulfil human rights for all. Since climate change mitigation and adaptation measures can have human rights impacts, all climate change-
related actions must also respect, protect, promote and fulfil human rights standards. The nature of the linkages between the environment and human rights has been debated for years. However, it has long been recognised that a clean, healthy and functional environment is integral to the enjoyment of human rights, such as the right to life, health, food and an adequate standard of living. This recognition offers one reason the international community has banded together through multilateral environmental agreements (MEAs) to prohibit illegal trade in wildlife, to preserve biodiversity and marine and terrestrial habitats, to reduce transboundary pollution, and to prevent other behaviours that harm the planet and its residents. In short, environmental protection protects human rights. At the same time, adherence to human rights – such as those that ensure public access to information and participation in decision-making – contributes to more just decisions about the utilisation and protection of environmental resources, and protects against the potential for abuse under the auspices of environmental action. Thus, domestic environmental laws and MEAs can both be strengthened through
1 per cent increase in temperature leads to a 4.5 per cent increase in civil war in the same year
the incorporation of human rights principles, even as they contribute to the ongoing realisation of human rights.
The wisdom of Rumi
Mawlana Jalal ad-Din Rumi (12071273), better known in the West as Rumi, was one of the greatest thinkers, spiritual masters and mystic poets of all time. While the human rights theory of today ensures social and political equality between people, Rumi’s equality approach describes a human as a beam radiating from one light source and a drop from the same ocean. As he regards humans as branches of the same tree, he foresees an exact and integrated equality in both cosmic and physical terms. Rumi, in all his works, sees the human as a supreme being beyond having certain inherent rights. He expressed this universal manifestation, which can be seen as the starting point of the 1948 United Nations Universal Declaration of Human Rights, eight centuries ago. Climate change poses an enormous threat to the lives and wellbeing of individuals and communities across the world, and that needs collective response according to the capacity of each community, state, private sector and, most importantly, from individuals. In my humble view, avoiding the disastrous consequences of climate change and water conflicts, and adherence to human rights, cannot be achieved merely through the enforcement of laws at local and international levels. A coherent, workable coalition of law, religion, culture, morality and knowledge developed by physical and social sciences will make Earth a better place to live in. Mohammad Akram Sheikh is a senior advocate of the Supreme Court of Pakistan, founding President of the Supreme Court Bar Association Pakistan, former Chief Executive of the Pakistan Bar Council, an active member of the American Bar Association for more than 30 years, and a former Ambassador-at-Large to the Government of Pakistan (1993-1997).
A P R I L 2 0 19
p20-23_Opinion_AJ04.indd 23
|
23
29/3/19 2:05 pm
COVER STORY
Photos from lef t to right: Mevans/iStock; Paul Merrett/iStock
ORWELLIAN NIGHTMARE
24
|
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 24
28/3/19 5:47 pm
COVER STORY
If you believe the western media, China's so-called social credit system is about as Orwellian as you can imagine. But is it as frightening as it's made out to be? CLAIRE CHAFFEY speaks to the experts to find out.
OR SOCIAL UTOPIA?
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 25
|
25
28/3/19 5:47 pm
COVER STORY
And it goes beyond the usual consternation about human rights abuses, subjugation of the rule of law, and growing political and military influence. Much of it centres on the so-called social credit system, whereby Chinese citizens and organisations – if you believe the growing media hype – are tracked, ranked and subsequently punished or rewarded depending on their behaviour. At its worst, it’s a scene straight out of a dystopian screenplay. At its best, it’s a smart use of technology to ensure corporate and individual citizens toe the line and behave with honesty and integrity, their human rights and privacy intact. The system first made headlines in 2014, when pilot schemes were rolled out across the country with a focus on cracking down on counterfeiting and fraud, tax evaders and those avoiding paying fines. The technology capable of tracking and cataloguing regulatory compliance by companies, NGOs, public institutions, government agencies, and individuals was borrowed from the innovative ranks of commercial giants like Huawei and Ali Baba, and the system was pitched as a way of keeping the people safe – and honest. Play by the rules and you won’t get hurt. Break the rules and you’ll pay the price. Overseen by the National Development and Reform Commission (NDRC), a state-run agency, what exactly the system is depends on who you talk to. Jamie P. Horsley, Visiting Lecturer in Law and Senior Fellow in Law at the Paul Tsai China Center at Yale Law School, defines the system, which she admits is incredibly complex, as follows: “The national system compiles regulatory information on whether entities and individuals have violated laws, regulations or contractual commitments. It puts violators on warning lists, and more serious ones on blacklists that come with defined restrictions or inconveniences. Much of this information, including information 26
|
Photo: ibausu/iStock
There’s an air of curiousity around China.
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 26
29/3/19 5:08 pm
COVER STORY
about penalties – as well as rewards for good behaviour – is made public, thus comprising the reputational component of the system.” Such “inconveniences” reportedly include restrictions on domestic and international travel, the freezing of assets, and the inability to access certain services such as private schools or hotels, among other things. “The intent is both to bring violators into compliance and to incentivise good (legally compliant) behaviours in the future, within an environment of rampant fraud, counterfeiting and other unlawful and ‘untrustworthy’ behaviours,” adds Horsley. “The national system is replicated at the provincial level, where there are more regulations in place (as opposed to policies), and there are a growing number of municipal-level systems that are trying out various points and scoring systems, and there are private credit rating or scoring systems employed for commercial purposes that are often confused with the official social credit system as operated at the national level.”
“Play by the rules and you won’t get hurt. Break the rules and you’ll pay the price.”
Western hysteria or justified fear?
A policeman guarding Tiananmen Square in the heart of Beijing, right in front of the portrait of Chairman Mao.
There is no doubt that media reports around the social credit system are becoming more sensational as China’s trial of the system expands. In July last year, New York Times journalist Paul Mozur wrote, “With millions of cameras and billions of lines of code, China is building a
high-tech authoritarian future. Beijing is embracing technologies like facial recognition and artificial intelligence to identify and track 1.4 billion people. It wants to assemble a vast and unprecedented national surveillance system, with crucial help from its thriving technology industry.” In November 2018, the BBC questioned whether the system is “a useful carrot and stick approach, or the start of an Orwellian nightmare”. The Guardian even reported last year that “China’s social credit system could interfere in other nations’ sovereignty”. While on the surface things seem incredibly Big Brother-esque, there are those who believe reporting on the social credit system’s impact is inaccurate and overstated. In October last year, Jeremy Daum, Senior Research Scholar in Law and Senior Fellow at the Paul Tsai China Center at Yale Law School, recorded a podcast in the hope of dispelling some of the myths around the system. When it comes down to it, he says, the system is inherently a regulatory tool that won’t greatly change how the Chinese government already operates. “I’ve spent a good amount of time looking at China’s social credit systems, writing articles and translating lots of relevant legal authority,” says Daum, who also runs an online legal resource called China Law Translate. “The reality of social credit, which I found through researching and living in China, just isn’t that exciting. It’s pretty mundane regulatory law with only a few new wrinkles. For me, the question has become, ‘How did social credit get to be so interesting to Western audiences?’” According to Daum, the social credit system isn’t really about a social credit score at all. Rather, he says, “it’s less of a single system or a program than a vague idea that covers a wide variety of regulation. The unifying feature in them all – to the extent that there is one – is that keeping records will help make people more honest and reduce misconduct.”
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 27
|
27
28/3/19 5:47 pm
COVER STORY
And that, if you ask the NDRC, is the whole point. “Let the trustworthy travel smoothly and let the untrustworthy be restricted everywhere,” said the NDRC’s Deputy Director, Lian Weiliang, at a press conference in Beijing last month. Daum says the social credit system can be distilled into three distinct concepts, all of which lean towards creating a safer, more honest society. “The first is the financial aspect: financial credit similar to what happens in a lot of countries in the world,” he explains. “The second is a regulatory scheme, and this involves blacklists for various violations of laws and legal obligations. And the third is an educational component, where the government is hoping to instil the values of trustworthiness in the population.” Horsley, who last year authored an article in Foreign Policy Magazine entitled, “China’s Orwellian Social Credit Score Isn’t Real”, also believes 28
|
“We should not assume that Chinese people are passive and compliant with this system. If it is seen as broadly helpful to their security, they will comply.” Kerry Brown, Director of the Lau China Institute, King's College London
many reports on the impacts of the social credit system are overstated. But, she warns, there are definite red flags. “[The West is overreacting to this system] for reasons relating to suspicion of an authoritarian Communist Party-ruled state that has been increasingly restricting the civil and human rights of its citizens, aided by new technologies including surveillance and artificial intelligence,” she says. “While there is a real danger that the social credit system might be used to punish non-market-related behaviours already criminalised, such as certain kinds of speech or association, China’s security authorities have other tools to do so that are already highly developed and integrated.” If you ask Kerry Brown, Director of the Lau China Institute at King’s College in London, the hype is easy to explain. “The response is part of the
Photos (clockwise from lef t to right): Chutharat Kamkhuntee/iStock; Solid Colours/iStock; ymgerman/iStock
The subway in Kunming, China.
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 28
28/3/19 5:47 pm
COVER STORY
general unease at China’s newfound prominence and power,” he says. “It simply adds to that narrative.” Brown also questions whether the complex system – which he labels “aspirational” – is likely to be successful, or is instead a behemoth that could easily spin out of control. “[The system’s] success is dependent on whether the pilot schemes at the moment work and, of course, whether they are intelligent,” he says. “The Chinese government does have masses of data on people, but how it is able to analyse and use this data is another matter. So while the news abroad is presented as this terrifying, complete and all-knowing system, there are probably immense things it is incapable of knowing without very good analytics. “And while it can see the surface of everything, in China everything underneath remains as hidden as ever.”
Risks and implications
According to Brown, there are two primary risks associated with the system that could lead to dire consequences if they go unchecked. “One is that [the system] misinterprets and misunderstands this information. The second is that it operates where – while technology zooms ahead – the moral and legal parameters of the government are imperfect, and that the resentment and resistance that the implementation of this scheme leads to socially will lead to massive social unrest,” he says.
The social credit system in numbers 2014
The social credit system pilot was first rolled out, focussing on tax evasion and unpaid debt.
2020
The system will be fully rolled out across China, relying on sophisticated technology and data-sharing.
3.6 million
The number of citizens forced to repay debts after being “restricted” under the system.
17 million
The number of people blocked from buying plane tickets because they have been blacklisted by either a court or government department, such as the tax office.
Passengers queuing for a security check at Guangzhou South Railway Station.
“We should not assume that Chinese people are passive and compliant with this system. If it is seen as broadly helpful to their security, they will comply. But if it is seen as being implemented in a way where the results are messy and imperfect, there will be problems. The government will need to cool its enthusiasm for this very tempting new capacity it has or it might end up over-indulging in something that could cause huge backlash.” And, says Brown, if China is to avoid wading into a potential human rights and privacy disaster, it needs to be very careful. “It has massive implications, and the problem is that the Chinese government is trying to operate with new and fast-developing technology, with no real orientating notion of what kind of legal and moral parameters this should happen in,” he says. “That is a bit like a person who loves chocolate not being aware of its impact on their health and weight, and simply eating incessantly. The real problem now – despite what people see – is for the government to not overindulge itself in something that could simply, in the end, overwhelm it.” Horsley also foresees that the system could have enormous implications, especially for privacy, if not managed well. “Amassing great amounts of data – particularly about individuals – always sounds alarm bells. China has a real problem with hacking, so privacy violations through hacking are a big concern,” she says. “Privacy violations by government agencies that unwittingly or not publish information that should be kept private – like complete or, many would argue, even partial national ID numbers – is another risk.” And while the Chinese Government has confirmed that the system, which has been in pilot phase, will be fully rolled out in 2020, it has admitted that improvements are needed. An article published in The China Daily in March quoted Guo Weimin, spokesman for
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 29
|
29
28/3/19 5:48 pm
COVER STORY
“It’s important to get the story right. It’s important because we only have so much outrage to go around, and we want to make sure it gets to the right targets.” Jeremy Daum, Senior Research Scholar in Law and Senior Fellow at the Paul Tsai China Center at Yale
the second session of the 13th National Committee of the Chinese People’s Political Consultative Conference, as saying the system will take a long time to perfect, and that the reward and punishment measures need to be further improved. “Our goal is to make it difficult for those with no credibility to move a single step and ensure those with good credibility enjoy green lights all the way,” Guo added. Horsley also sees serious issues around the punishment and enforcement aspects of the system. “The system of joint punishments by multiple government authorities raises concerns that it is piling additional penalties on top of those already imposed by law for the relevant violations that led to getting on the blacklist that subjects one to joint punishment,” she says. “While in principle one is supposed 30
|
to be notified of the intent to blacklist and given an opportunity to contest the action, as well as accorded the right to be removed from lists if erroneously placed on them, the complexity of the overall system and its multiple actors at different levels of government make this ‘right’ potentially very difficult to enforce.” Characterising the social credit system is difficult, especially given the broader rhetoric around China and its sometimes less-than-satisfactory state behaviours – at least in the eyes of the West. “The Chinese government is no friend of the rule of law – not in the western sense,” says Brown. “But it may well find that the technology that underpins social credit may throw up problems where it needs more legal restraint, as much to protect itself against the dangers of overreach as to protect the public. That presumably is
one of the purposes of law – to protect the government as well as the governed.” And as difficult as it may be, as Daum says in his podcast, if we are to fully understand the system’s implications, we need develop the narrative accurately. “It’s important to get the story right,” he says. “It’s important because we only have so much outrage to go around, and we want to make sure it gets to the right targets. It’s important because we want to confront China on the right issues. It’s important because we want to be able to look at China and learn the lessons we can about ourselves and what might happen with our data in the future. And it’s important for maintaining our own credibility and creditworthiness.” Claire Chaffey is a lawyer, journalist and Asian Jurist’s managing editor. Find Jeremy Daum's podcast at https://bit.ly/2UWc7Q3
Photo: VII-photo/iStock
Law School
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 30
28/3/19 5:48 pm
COVER STORY
Busting the myths MYTH 1: individuals are assigned a social credit score
Heilongjiang
Inner Mongolia
Liaoning
Beijing
Shandong
Jiangsu
Henan
Shanghai
Sichuan Hubei
Zhejiang
Anhui
Fujian
Guangdong Round one (Aug 2015) Round two (Apr 2016)
China's social credit system launches in local and national pilots
“There is no such thing as a national ‘social credit score’. A few dozen towns and cities in China, as well as private companies running loyalty-type programs for their customers, do currently compute scores, primarily to determine rewards or access to various programs. The government does assign universal social credit codes to companies and organisations, which they use as an ID number for registration, tax payments, and other activities, while all individuals have a national ID number.”
MYTH 2: the social credit system collects data on every citizen “The government does collect regulatory information on all companies and social organisations, and different departments maintain their own dossiers on individuals. Some of this information is made public, and the social credit system is intended to create a culture of greater trust and creditworthiness in society as a whole. However, at present the system prioritises compiling and sharing public record-type data such as licensing, other regulatory
information, and adverse court decisions on adults in key areas. Unless people are sole proprietors or company representatives, have taken a loan or credit card, violated the law, or defaulted on a court judgment, they're unlikely to be in the social credit database.”
MYTH 3: the social credit system produces scores, grades, or assessments of “good” or “bad” social credit “Enterprises and professionals in various sectors may be graded or ranked, sometimes by industry associations, for specific regulatory purposes like restaurant sanitation. However, the social credit system does not itself produce scores, grades, or assessments of “good” or “bad” social credit. Instead, individuals or companies are blacklisted for specific, relatively serious offences like fraud and excessive pollution that would generally be offences anywhere. China does regulate speech, association, and other civil rights in ways that many disagree with, and the use of the social credit system to further curtail such rights deserves monitoring.” Source: Jamie P. Horsley, Foreign Policy Magazine, 16 November 2018; https://bit.ly/2TWEFMR
Source: Mercator Institute for China Studies (MERICS)
A P R I L 2 0 19
p24-31_CoverStory_SocialCredit_AJ04.indd 31
|
31
28/3/19 5:48 pm
F E AT U R E
The Khmer Rouge trials: has justice been done?
Photo: Roland Neveu
Justice for Khmer Rouge survivors may be imperfect, but it is essential for a new generation of Cambodians who can only create a better future having reconciled a bloody past. MELISSA COADE reports.
32
|
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 32
28/3/19 5:48 pm
Photo: Roland Neveu
F E AT U R E
C
In the final hours before the fall of Phnom Penh on 17 April 1975, heavy fighting drove the population towards the city centre.
ambodia became a party to the Genocide Convention in 1950 through accession. In 1975, brewing political unrest would see an underground communist movement overthrow Marshal Lon Nol’s US-backed government in a bloody coup. So began a four-year reign of fear, torture and forced labour, leaving somewhere between 1.5 to 2 million Cambodian people dead, thousands displaced, and the nation in tatters. A man named Saloth Sar – more infamously known as Pol Pot – would go on to lead the radical Khmer Rouge regime that became one of the deadliest of the 20th Century. About a quarter of the country’s population is estimated to have died under the regime, with a trail of mass graves evidence of the atrocities. The regime ended in 1979 when Vietnamese troops invaded the country. Survivors of the Cambodian genocide were left to pick up the pieces, the trauma of their past a reminder of what can happen when lust for power goes unchecked. Ten years later in 1989, Vietnam finally withdrew its troops from Cambodia. Up until 1998, the Khmer Rouge still had a base along the border with Thailand. When Khmer Rouge guerrillas overthrew the Cambodian capital of Phnom Penh on 17 April 1975, a handful of foreign reporters and photojournalists were there to witness the beginning of the purge. One of those press veterans, Frenchman Roland Neveu, shared with Asian Jurist some the photographs he captured on that fateful day. Cambodians suspected of supporting the government were executed, and civilians were marched at gunpoint out of town and into the countryside. The central bank was looted and city-dwellers, known as “new people”, were condemned. The empty shell of Phnom Penh became emblematic of “Year Zero” – a term referring to the rebirth of Cambodian history. And then foreigners and foreign aid were kicked out.
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 33
|
33
29/3/19 2:06 pm
F E AT U R E
American reporter Sydney Schanberg witnessed the mass evacuation of Phnom Penh in 1975. He described it as a “peasant revolution” that pushed millions from the capital in stunned silence. His Pulitzer-winning report for The New York Times, written upon his return to Thailand from Cambodia, described the forced exodus of the city’s entire population in three days as gruelling. “The Communists say they will have to become peasants and till the soil,” he wrote. “No one has been excluded – even the very old, the very young, the sick and the wounded have been forced out onto the roads – and some will clearly not be strong enough to survive. The old economy of the cities has been abandoned, and for the moment money means nothing and cannot be spent. Barter has replaced it.” Phnom Penh’s hospitals were completely emptied of patients, the journalist recalled, with thousands of wounded dying from a lack of care. “They went – limping, crawling, on crutches, carried on relatives’ backs, wheeled on their hospital beds.” 34
|
“A clear goal was to destroy, at least in part, the Khmer people.” This was only the beginning. A lifetime later, the trial of some of the Khmer Rouge's top leaders would capture the world's attention.
Judgment day
Nuon Chea, aged 92, and Khieu Samphan, aged 87 – two of the top Khmer Rouge leaders – were convicted of genocide by the Trial Chamber of the Extraordinary Courts of Cambodia (ECCC) in November 2018. Case 002/2 was the last of two trials brought against the pair and focused on allegations of crimes against humanity, grave breaches of the 1949 Geneva Convention, and genocide alleged to
have been committed at a number of sites across the country. The Khmer Rouge reigned with terror during the four years they held power, not only with torture and killing policies but with repeated forced movement of civilian populations from towns and cities to rural areas. Other policies relevant to the genocide charge included the establishment of cooperatives, worksites, security centres and execution sites; targeted purges of Cham Muslims, Vietnamese, Buddhists and former Khmer Republic officials; and a program of forced marriages. People existed under a system of control, threats and hunger. The trial chamber published a summary of its judgment in case 002/2 after 24 months of hearings. That document confirmed Nuon Chea and Khieu Samphan to be guilty of genocide. At the time of writing, publication of the final 002/2 judgment document was pending. It is likely both men will appeal the decision. In the 002/1 trail, which shared a Case File with 002/2, Nuon Chea and Khieu Samphan were convicted of
Photos (clockwise from lef t to right): Roland Neveu; Heng Sinith/ECCC POOL
17 April 1975: Khmer Rouge guerillas collect weapons in Phnom Penh.
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 34
28/3/19 5:49 pm
F E AT U R E
Are the ECCC trials worthwhile?
Human remains at Choeung Ek killing fields in 1981.
One of the largest Khmer Rouge mass graves.
crimes against humanity and sentenced to life in prison.
Did genocide take place under the Khmer Rouge? The period of the Khmer Rouge’s control over Cambodia is commonly referred to as the “Cambodian Genocide”, and the trial chamber’s 002/2 summary judgment confirmed there was a “widespread and systematic attack against the civilian population of Cambodia […] in furtherance of [Communist] Party policies”. While the topic was not addressed by the ECCC trial chamber, international law expert Dr Melanie O’Brien from the University of Western Australia says academic debate continues over whether genocide was committed against the Khmer people. “Those who argue against believe the Khmer Rouge regime carried out atrocities for political purposes, and as political groups cannot be targeted under the definition of genocide (under the Genocide Convention and the Rome Statute of the International Criminal Court), then genocide was not
Nuon Chea (lef t) and Khieu Samphan (right), two of the top Khmer Rouge leaders convicted of genocide by the Trial Chamber of the ECCC.
committed [against all Cambodians],” O’Brien says. She counters it was clear that the Khmer Rouge’s systemic abuses were to refashion Cambodian society through cultural and physical destruction, and therefore a clear goal was to destroy, at least in part, the Khmer people. “A more in-depth and nuanced analysis of what took place [reveals] that in fact politics was not a true motivation or reason, but rather an obsession with power,” says O’Brien. “Anyone and everyone became an ‘enemy of the people’, regardless of their political beliefs or activities, or lack thereof.”
When the ECCC was established in 2003, it had the mammoth task of reviewing and prosecuting crimes that had taken place decades prior. Khmer Rouge leaders were advancing in years and, throughout the trial process, former Foreign Minister and accused man Ieng Sary died. His wife, former Khmer Rouge Social Affairs Minister Ieng Thirith, was deemed mentally unfit to stand trial and passed away in 2015. In 2010, Kaing Guek Eav, who went by the alias Duch, was sentenced to life for his role as head of the Tuol Sleng torture centre during the regime. O’Brien explains that some international courts, including the ECCC, use the words “those most responsible” to focus the court's mandate and determine who it will prosecute. This tends to apply to the leaders of regimes which commit atrocities. However, the interpretation of “those most responsible” often overlooks people who committed (rather than planned) the crimes. By taking this approach it becomes certain that many perpetrators of prolific crimes will go unpunished. “It is those who pulled triggers and swung machetes who have walked away scot-free. Instead, they are living next door to victims of the regime as if nothing happened. However, these trials are often hampered by a lack of resources and cooperation, meaning fewer trials take place than is desirable,” O’Brien says. Some of the most violent senior leaders of the Khmer Rouge, like Zone Secretary Ta Mok, are long dead. Pol Pot himself expired in the 1990s. Other accused Khmer Rouge actors who were investigated for cases 003 and 004, according to the controversial decision of the national Cambodian prosecutor, do not fall under the jurisdiction of the ECCC. A commonly cited problem with the trials is that the current authoritarian government is a threat to half of the tribunal’s 50/50 foreign and domestic staff, leaving national employees open to political pressure.
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 35
|
35
28/3/19 5:49 pm
F E AT U R E
36
|
Witness (2-TCW-854), Noem Oem, testifies before the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia in Case 002/02 against Nuon Chea and Khieu Samphan.
that victims are significantly included in the ECCC process.” The opportunity for civil parties to give their testimony and have their accounts of this part of Cambodian history officially recorded means so much. For younger generations, too, learning about what happened and watching the trials take place in a courtroom has a lasting impact.
“Even if justice isn’t perfect, it’s still important.” Hundreds of school-aged children and community groups are invited to sit and watch proceedings from the public gallery each month. According to legal academic Dr Maria Elander from La Trobe University, the ECCC has reignited activities and interests in what took place during the Pol Pot regime. “No tribunal has had as extensive and broad outreach and inreach
activities. No other tribunal has had even close to as many attend the proceedings,” Elander says. “We need to keep in mind that Cambodia is a sovereign state and that they wanted assistance [with the] trials in Cambodia.” There is a powerful preventative role that trials such as these in Cambodia play. Using the ‘rational choice theory’ in criminology, O'Brien argues that perpetrators are more likely to commit an atrocity if they believe they can do so without the certainty of punishment. “What is missing from mainstream headlines is how important it is for the victims of the Khmer Rouge that justice is served. Even if justice isn’t perfect, it’s still important that something is happening, that those who were responsible are not getting away with it and living happily the rest of their lives with impunity, despite committing horrific atrocities in the 1970s.” Melissa Coade is a senior journalist at the Law Society of NSW. In 2015, she worked in Cambodia as an intern with the UNAKRT Office of the Co-Prosecutors and UN Women. She comes from a line of strong Cambodian women.
Photo: Sok Heng Nhet/ECCC
In 2001, the Cambodian national assembly passed a law allowing the ECCC to be established as an independent Cambodian court with international participation. The UN made an agreement in June 2003 about how the international community would assist with the trials. “The highly corrupt Cambodian government has pressured Cambodian staff not to undertake particular prosecutions. This is because the government has ex-Khmer Rouge cadres in its ranks, and they don’t want to see themselves or their friends on trial,” O’Brien says. Other hurdles the hybrid court grapples with include operating in three official languages (Khmer, French and English), where testimony and questioning is translated at the risk of precise meaning being skewed. The scale of the investigative and legal work – the combined case file for the 002 trials involved more than 10,000 evidentiary documents – is also huge. The Court's last reported figures record costs over USD$300 million, and some critics question whether that international money could be better spent on foreign aid in greater areas of need, such as health and education. But O’Brien, who has conducted extensive field interviews with Khmer Rouge survivors for a forthcoming book about genocide and human rights, says the criminal justice process is an important part of healing for the country. “Transitional justice is not a question of either/or," she says. "Criminal justice programs are just as important as victim-centred restorative justice, and we must also remember
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 36
28/3/19 5:49 pm
F E AT U R E
A word from Cóman Kenny, Assistant Prosecutor in the Office of Co-Prosecutors at the ECCC Nuon Chea and Khieu Samphan are the highest-ranking surviving members of the Khmer Rouge, perhaps the most successful example of a government pursuing an ideology to the ruination of its people. Pol Pot, Nuon Chea, Khieu Samphan and a handful of others formulated and ruthlessly implemented policies to supplant the roles of the individual and the family in Cambodian society with the coerced obedience of a homogenised collective. This was achieved by forcibly moving people to rural cooperatives and enslaving them; quelling even the mere suspicion of dissent with detention and execution; forcing women and men to marry and consummate; and targeting minority ethnic, racial, and religious groups for eradication. These were neither isolated nor localised events. They occurred on a massive scale, nationwide, across almost four years. The judgment represents a long wait for Cambodians to have their suffering properly acknowledged. The trial provided an outlet for Cambodians to have their stories heard. For many, it was an extraordinarily brave decision, publicly speaking about scarcely fathomable events they may not otherwise have discussed since. Often, forced marriage victims remained together after the Khmer Rouge era and children may have been unaware of the circumstances of their parents’ union. The judgment is testament to those who came forward to share their experiences. It honours the memory of those whose lives were irreparably altered through no fault of their own. It was also a monumental day for international criminal justice. Before it, two events had been judicially recognised internationally as genocide – the killing of Muslims in Srebrenica and of Tutsis in Rwanda. The court found that the Khmer Rouge committed two genocides: of the ethnic Vietnamese and the Muslim Cham population. Additionally, this is the first judgment to recognise both women and men as victims of rape, when couples, who often had never met, were forced to have sex after being forcibly married in accordance with the Khmer Rouge's diktat of increasing the population. Cambodia's accountability process
is not flawless. International justice in general is not beyond reproach. However, the Case 002/2 judgment showed victims that those responsible for the horrors wrought upon them are no longer above the law; demonstrating to Cambodians that justice must be done through a fair trial. It provided a detailed historical record of the suffering of those who might otherwise be lost to ambivalence about the past. States worldwide have spent huge sums on domestic trials, such as the Oklahoma City bomber trial in the US or the Maxi trial of mafia figures in Italy, which involved serious but relatively small-scale incidents. Likewise, states continue to put on trial Nazi camp guards or other World War II-era officials without compunction, despite the passage of time and the age of the accused. Though the cost of the ECCC is criticised, it is a fraction of other international tribunals that have not delivered anything like comparable accountability. While the death toll has been estimated between 1.5 and 2.2 million, the reality is that nobody survived unaffected by the forced movement, enslavement, arbitrary detention, torture, forced marriage, rape, starvation, lack of medical treatment, suppression of identity, and various other forms of ill-treatment. Nuon Chea and Khieu Samphan's victims thus numbered almost 8 million. Not since Nuremberg has any court addressed events on such a scale or brought those responsible for the suffering of a whole population to account.
A word from Doreen Chen, International Lawyer for Nuon Chea The Khmer Rouge were judged in the court of public opinion long before the tribunal was established. In the decades since the Democratic Kampuchea period, a whole genre of literature and subset of civil society have emerged focused on producing a definitive truth of what occurred during the period. This context presents one of the greatest challenges for tribunals of this nature: how can such tribunals honour their obligations under international and national law to guarantee defendants a meaningful presumption of innocence? The reaction to the trial judgment against Nuon Chea on charges of genocide, crimes against humanity, and war crimes is a case
in point. The judgment has been publicly hailed even though it has not yet been officially released. It is being dissected in this article and parties’ reactions sought, even though the Trial Chamber has only released a 30-page summary with no insight into its reasoning. The full judgment is rumoured to be 2,500 pages long. This is akin to literally judging the proverbial book by its cover. Nuon Chea will be filing an appeal at the first available opportunity. Apart from the likelihood of appealing the findings in the trial judgment, the unavailability of interlocutory appeals at the tribunal's trial stage means there are a host of issues for which the appellate stage will be Nuon Chea's first opportunity for redress. It is a cornerstone of the law that until a final appeal judgment has been rendered, Nuon Chea remains entitled to enjoy a presumption of innocence. In reality, however, Nuon Chea appears to be saddled with a presumption of guilt and the burden of disproving the prosecution's case. He must do so before a bench that includes Cambodians who personally experienced life under the Khmer Rouge. Furthermore, he must do so in an environment where it appears impossible to obtain witnesses for him on the same basis as witnesses against him – another fundamental tenet of his right to a fair trial. The narrative offered by the tribunal omits key voices. These include the testimony of the current Prime Minister, Hun Sen, and current leader of the National Assembly, Heng Samrin – themselves senior Khmer Rouge leaders whose eyewitness accounts of alleged senior leadership decisions were critical and irreplaceable evidence, yet whom the Trial Chamber refused to summons owing to political pressure or fear. Perhaps the trial judgment's reasoning will come as a pleasant surprise. However, unless such tribunals are able to guarantee defendants their fundamental right to a fair trial and withstand political heat with their integrity intact, it is doubtful they are fit for purpose. Even a previous Trial Chamber judge could only bring herself to describe the first trial of Nuon Chea as “fairish”. Treating such cases as a fait accompli undermines the rule of law and the quality and relevance of whatever international justice such tribunals hope to deliver.
A P R I L 2 0 19
p32-37_Feature02_KhmerRouge_AJ04.indd 37
|
37
28/3/19 5:49 pm
F E AT U R E
The top 5 trends of future legal practice The Future of Law and Innovation in the Profession (FLIP) conference held in Sydney, Australia, late last year saw more than 400 lawyers attend to hear local and international experts speak on the future of legal practice. Here are five key trends that emerged.
Firms will start thinking like start-ups
Forget robot lawyers – the “Uberisation” of legal services poses the biggest threat to the legal industry. That’s according to US-based legal innovator and professor of law Daniel Martin Katz, who delivered the keynote speech at the 2018 FLIP Conference. Katz, a professor of law at Illinois Institute of Technology and Michigan State University, said recent media reports had caused misdirected panic among lawyers by focusing on the so-called “rise of the robo-lawyer” in a shrinking jobs market. But, he said, the most significant threat to lawyers’ wages and firm profitability would come from smaller start-ups and fusion businesses such as consulting and accounting firms. “The media loves the ‘robot lawyers’ thesis, but legal innovation is far broader than legal tech per se,” said Katz. Katz explained that in recent years start-ups and consulting businesses had begun to compete with law firms by “Uberising” the sale of legal services. He said these businesses tended to compartmentalise individual 38
|
Photo: Chris Gleisner
1
A P R I L 2 0 19
p38-41_Feature03_Trends_AJ04.indd 38
28/3/19 5:50 pm
F E AT U R E
documents or products and offer them cheaper than traditional firms (with their expensive office overheads and staff salary bills) could afford to. He gave the example of an online start-up offering downloadable legal documents for a fixed fee, such as employment contracts or wills. These contracts often have artificial intelligence solutions built in, enabling users to adjust certain terms and produce a legal document suited to their individual practice. “The lines have become blurred and boundaries between industries are disappearing,” said Katz. “Law has historically been a service business, but it is becoming a product-service hybrid.” Katz, who described himself as an academic, scientist, technologist, teacher, consultant and advisor, is highly qualified to speak on the issue. He is known as a change leader in the legal profession internationally and was named in the “Fastcase 50”, an award that “recognises 50 of the smartest, most courageous innovators, techies, visionaries, and leaders in the law”. Katz was also named one of the American Bar Association Journal’s “Legal Rebels” in 2018. Katz is also the Chief Strategy Officer of his own legal-consulting hybrid called LexPredict, which works with Fortune 500 companies to solve technical and strategic problems. In its mission statement, “#MakeLawBetter”, Katz notes that his company is just one of the more than 70 legal tech start-ups listed by Stanford University in the US. Most of these start-ups have been doing the “lion’s share” of research and development in the legal industry, said Katz. He said that traditional law firms would do well to take a leaf out of the books of start-ups, by exploring technology solutions to help lawyers to do business more efficiently and for lower cost. “Pick a problem with good monetisation value, and offer a product that solves that problem,” advised Katz. “The race is on for firms to offer
products and scalable tech solutions to continue to compete in the legal industry.”
2
Disruption will become a strategic priority
The challenge isn’t the pace of change of technology – the challenge is the pace of change of ourselves. So said James Brett, digital strategist, leadership development coach, and author of Evolving Digital Leadership. “When I am doing strategy work with organisations – both digital and non-digital – I hear clients say, ‘Everything is moving so quickly, we don’t really know how to cope with this. Should we use this platform, this technology? We just can’t keep up.’,” Brett told the FLIP conference. But if lawyers simply paid more attention to technology and disruption, said Brett, it’s actually not moving as fast as it seems. “If you imagine boiling a pot of water, it takes six or seven minutes. Only in the last 30 seconds does it move from being non-boiling to boiling. Yet there have been five or six minutes of heat added to that water,” he explained. “That is similar to what happens when new technology appears. Google drops a new AI chat bot that can make human-like telephone calls. It seems like a big step, a huge change in technology. But there have been five, 10 or sometimes 15 years of work behind that. The pace of change is fast, but it’s not as fast as we might think.”
“The race is on for firms to offer products and scalable tech solutions to continue to compete in the legal industry.” Daniel Martin Katz, Professor of Law (pictured lef t)
Brett advocated a four-step process called the Evolution Helix, which he said gave lawyers a good chance of not only responding to disruption, but actually being disruptive. The four steps outlined were awareness, intention, attention, and reflection. Awareness, said Brett, simply meant recognising you had more to learn about disruption. Intention, he added, meant getting intentional about responding to that disruption. “If we don’t respond to disruption, we are likely to get disrupted at some point,” he said. “Make sure you don't have a victim mindset. “Doom and gloom is not going to work. It’s going to create all sorts of negative patterns and be a really stressful experience. Make incremental changes constantly. That is how water boils. It’s an incremental addition of heat and all of a sudden we have a breakthrough.” Attention translated to making time and prioritising your strategy on disruption, he added. “If you don’t make disruption a strategic priority, you just don’t do it,” said Brett. “[Many companies] have a roadmap and they’re following that roadmap. They’re not looking at the disruptive elements and innovation elements because they’ve got a delivery chain and shareholders and milestones to meet. If you are not making disruption a strategic priority and measuring it, you are never going to do it.” The final step in the four-step process was reflection. “How often do people do this on a regular basis? How often do you look back on a week, a month, a quarter and ask, ‘What did I do? Did it really align with what I wanted to achieve?’” asked Brett. “It is important to look at your local ecosystem – your city, your state, Australia, depending on your target demographic. Then look at the innovators in your industry and outside the industry and see what they’re doing. Constantly look forward, because that
A P R I L 2 0 19
p38-41_Feature03_Trends_AJ04.indd 39
|
39
28/3/19 5:50 pm
F E AT U R E
pot has been boiling for a while. It hasn’t just been boiling for 30 seconds – it’s been boiling for five or six minutes. If you pay time and attention you can actually figure out what is going on.”
There will be more fixed pricing
Fundamental changes to how law is practised are a fait accompli, according to attendees in a sold-out a session chaired by David Bushby, managing director of Lexoo Australia. One key change, according to panellists George Beaton, executive chairman of Beaton Research and Consulting, Ian Marshall, National Head of Macquarie Business Banking, and Jodie Baker, founder of Xakia Technologies, will be a continuing growth in the use of fixed pricing. Beaton, a senior fellow at the University of Melbourne law school who has also taught business at a tertiary level for years, said lawyers in firms big and small should see this as an opportunity. “What we are seeing now for the first time – to my knowledge, ever – is that buyers, whether they are consumers, retail, or businesses small or very large, have more and more choice,” Beaton said. “They are beginning to understand they have that choice and are exercising that choice. Like us with medical practitioners, we google everything before we go to the doctor … much to the absolute terror of the local GP. “Clients, whether they are in-house clients or the external clients served by outside law firms, can google choice, and we also have platforms where we can rate lawyers.” Beaton said this choice was “driving enormous power for clients and … driving a reason to innovate”. “That brings big opportunities the profession has never seen before,” he said. “When we get our cars serviced, we have certainty about the cost. People expect this of their legal services.” He pointed to a survey of 6,000 40
|
“When we get our cars serviced, we have certainty about the cost. People expect this of their legal services.” George Beaton, Executive Chairman of Beaton Research and Consulting
clients of small and mid-tier firms which found “the more fixed pricing, the happier clients are”. Marshall said change was being driven by consumers demanding legal technology to make things “more accessible and cheaper”. “The ability to charge by the hour will be limited in the future,” he said, adding that the use of new technologies such as some apps would help lawyers make the change. Baker added that doing things “faster, cheaper and better” was now
a necessity for all firms. She said the use of chatbots (a computer program that conducts a conversation via auditory or textual methods) and automated contracts would increase “so lawyers aren’t doing glorified administration work”. “Law firms are driving the appetite for tech-savvy law students,” Baker said.
4
Legal education will evolve
Erika Ly, President of The Legal Forecast, a not-for-profit for early-career professionals passionate about disruptive thinking and access to justice, and Lyria Bennett Moses, Director of Allens Hub for Innovation and Technology, sat down for a student-professor Q&A during the FLIP Smalltalks session. Here are the highlights. Ly said Law school failed students in two ways – context and being hyper-competititve. “When you enter law school, you are not necessarily given the big-picture context of how to place your law degree or legal education within society,” she said. “You only learn about that when you
Photos: Chris Gleisner
3
A P R I L 2 0 19
p38-41_Feature03_Trends_AJ04.indd 40
28/3/19 5:50 pm
F E AT U R E
get to fourth or fifth year and you learn about the legal profession and ethics. That is not enough to give you a sense of how your legal education fits into a broader societal context. “Law students tend to be a selfselecting group of Type A personalities. There is intense competition and not enough collaboration. There’s a cannibalistic environment in law schools.” Asked what law students needed as far as technology goes, Bennett Moses replied “basic literacy”. “Clients are affected by automated systems, and that’s from the bottom of the food chain, from people getting robo letters to companies using AI to make business decisions,” Bennett Moses explained. “Legal practice is increasingly involving various types of technologies and tools, so you need to understand what it means and what exactly it is. “The more we use words like ‘artificial intelligence’, the more we hide, ‘What does this tool actually do? What is the piece of the puzzle it does? How is it getting to its conclusions?’ We need to understand that, because different tools have different risks and limitations.” Bennett Moses said law students should recognise the diversity of career options available, adding “it’s not all about the clerkship at the end of the tunnel”. “I don’t think most law students are aware of the legal tech sector, although that knowledge is growing,” she said. “They should think about diversifying their skill set and gaining other skills. Everyone whom law firms or anyone else are hiring is going to have a law degree. What else do you bring? Everyone is asking where the profession is going. I would encourage law students to think about how they can be the change. What are the changes they would make?” Ly said law students should be “okay with ambiguity and uncertainty because the future of legal practice is very uncertain”.
“The jobs that are going to be out there are not necessarily the same as the jobs we have always seen,” she said. “It’s intense engagement with the water in which they swim – that is crucially important. Second, communicate well and communicate on a very human basis. I think the fact law students would rather email you than visit your office is an indication that we need to learn how to communicate better.” She said people of all ages should remind themselves that Generation Y “grew up with the internet … came of age at the same time the internet came of age”. “Because of that, we have had access to knowledge at our fingertips. As a result, we come with duplicity of interests,” Ly said.
5
AI will require the human connection to succeed
Professor Michael Legg and Dr Felicity Bell from UNSW Law are convinced the core characteristics of good lawyering will remain in the future. Good judgment and practical wisdom are human qualities, which cannot be replicated by a machine, they said. At least for now. “One of the key things that unites lawyers as a professional group is the concept of good judgment or sound
“Law students should be okay with ambiguity and uncertainty, because the future of legal practice is very uncertain.” Erika Ly, President of The Legal Forecast
judgment,” Bell said. “Sometimes that’s referred to as ‘practical wisdom’. “Good judgment can’t be captured by a formula or a mechanical rule. It’s something that has to respond in a particularised way to a particular situation. So as far as we can tell, that’s something that is still quite unique to humans.” Mark Cohen Esquire, the CEO of Legal Mosaic, agreed, saying, “I don’t think tech is going to replace lawyers. It is ushering a new age. There are going to be a lot of new legal positions that are going to open up and we don’t even know what these jobs are going to be, but we know that they are going to be variations and combinations of different themes that translate to work.” Cohen said that modern lawyers have had to adapt to the “doing more with less” mentality – a way of thinking that clients in the post-2007 global financial crisis era have embraced. He pointed to this new business mantra and the ways globalisation and the use of smart-phones have changed how people interact with the world as evidence of changes to the “traditional legal buy-sell dynamic”. “Law has morphed from a very lawyer-centric, labour intensive, homogeneous law firm-dominated guild to something very different,” Cohen said. “It has become a digitised industry that relies on technology to deliver legal services.” Cohen pointed to Uber’s upending of the taxi industry as an example of how regulated and established sectors could be robbed of their market-share fast if they didn’t embrace change. He said alternative legal service providers and the Big 4 accounting firms had been able to do the same thing to traditional law firms by giving clients control over who did the legal work and how much of it. He added that Uber was part of new generation of service providers that had changed client expectations in terms of both cost and service transparency.
A P R I L 2 0 19
p38-41_Feature03_Trends_AJ04.indd 41
|
41
29/3/19 2:08 pm
F E AT U R E
So tired of waking up tired? When it comes to fatigue, lawyers have it all wrong. In a culture that glorifies long days or even weeks without sufficient sleep, the effects can be disastrous. Airline pilot CHRIS MCBURNIE uses science to argue that law firms must change their attitude or suffer the consequences.
42
|
Illustration: Sorbetto/iStock
L
aw is a field that requires those working in it to exercise attention to detail, judgment, and reasoning. It is also a profession notorious for long hours and high levels of fatigue. Unfortunately, the two competing demands are completely incompatible – and for that you can blame science. I come from an aviation background (former military and current airline pilot), and aviation knows fatigue very well. Long flight durations, frequent time zone changes, flying all hours of the day – you name it, we’ve had to live it. But the aviation world has been forced to rapidly learn and adapt to the fundamental shortcomings of human performance – not because we’ve had a key performance indicator to tick off or because a regulator has dragged us into reforming our ways, but because we’ve made mistakes and people have died as a result. (There’s nothing like a high likelihood of dying as the outcome of your errors to act as a motivator for continuous improvement.)
A P R I L 2 0 19
p42-45_Feature04_Fatigue_AJ04.indd 42
28/3/19 5:51 pm
Illustration: Sorbetto/iStock
F E AT U R E
A P R I L 2 0 19
p42-45_Feature04_Fatigue_AJ04.indd 43
|
43
28/3/19 5:51 pm
The 1970s and ‘80s saw numerous high-profile aviation accidents resulting from a perfectly serviceable aircraft combining with human shortcomings. This led to the industry putting a huge amount of effort into researching what we refer to as “human factors”, which are all aspects of human performance that interact with the environment to influence outcomes. While the primary outcome of this has been improvements in safety, it has also seen significant improvement in human performance. Now, back to blaming science. Fatigue science is only one element in the field of human factors, but it is one that directly impacts every profession. It is also one that is not understood widely, even at a fairly basic level. Everyone sleeps, but very few know how sleep works or what it does. And you need to know. When we sleep, we repair ourselves physically and mentally. Before I get into specifics, a fundamental element of sleep you need to understand is that most cognitive repair occurs in the second half of the night. Hence, if you are in a role requiring high levels of cognition, but are existing on three or four hours of sleep each night, you are simply not operating mentally at an adequate level, regardless of what you may try to convince yourself. In addition, the body will always prioritise physical repair over mental repair. As such, when we are sleep-deprived, the impact on us mentally is cumulative and significant, and often results in undesirable outcomes. (Ever wonder why sleep deprivation is such an effective interrogation technique in movies?)
Tired vs fatigued
There is a distinct difference between being tired and being fatigued. The former is common, experienced by most people on a regular basis, and does not generally affect performance. The tipping point, however, between being tired and being fatigued is when you begin to have reduced mental or physical performance, often 44
|
“When you start to fatigue, the first elements to diminish are exactly the things that are fundamental to the legal profession: attention, judgment, and reasoning.” due to increased mental, emotional, or physical workload, insufficient sleep, circadian rhythm (body clock) disruptions, or a combination of all three. An additional factor is that the person least likely to accurately judge how fatigued you are is yourself. When you start to fatigue, the first elements to diminish are exactly the
things that are fundamental to the legal profession: attention, judgment, and reasoning. Unfortunately, physical manifestations, such as loss of muscular co-ordination, take a lot longer to diminish. The simple analogy for this involves driving a car. If you get to your destination and have a “how did I get here?” moment, the likelihood is that you were driving with a high level of fatigue. Yet you could still steer, change gears, indicate, and do all of the muscle-memory things necessary to drive the car. But if something unexpected was to happen which required your attention and judgment, the likelihood is your response would not have been adequate, and you would have at best received a scare or, at worst, had an accident. If you take this concept and apply it to the legal profession, unlike other professions in which there are some core muscle-memory physical skills to fall back on, law is reliant on the very attributes which diminish quickly with the onset of fatigue.
Illustrations: Sorbetto/iStock
F E AT U R E
A P R I L 2 0 19
p42-45_Feature04_Fatigue_AJ04.indd 44
28/3/19 5:51 pm
F E AT U R E
Law is also a field with significant cultural inertia and a history of working long hours and, as such, will inevitably be resistant to change. There is, however, a multi-faceted argument to promoting fatigue management. One is the occupational health and safety duty of care angle, and another involves the broader wellness campaign. But for those who aren’t convinced enough by these approaches, then surely the simple fact that effective fatigue management improves the output and quality of work should be a good motivator. A long working day simply doesn’t correlate with high-quality work. In fact, it results in the opposite. Would a shorter working day where you brought your A-game be more productive than a longer one with your B-game? So, where to from here? Step one is to work with science rather than against it. In order to get the physical and mental repair each night, you need both sleep quantity and quality. Throughout the night, the stage of sleep you are in can be established by monitoring brain, muscular, and ocular activity. These stages run on a repetitive 90-to 120-minute cycle and, as the evening progresses, the physical repair element (referred to as Stage 1 to 4, or slow-wave sleep) decreases and mental repair stage (REM sleep) increases in duration. Cutting your sleep short will have an obvious impact on the quantity of REM sleep, but what is generally not appreciated is that alcohol, caffeine, recreational drugs, and even sleep assisting agents (such as Temazepam) all have an inhibiting effect on REM sleep. Drinking a bottle of red and sleeping for 10 hours may sound good in theory, but in this instance the quality of sleep doesn’t match the quantity and, as such, you have not done yourself any favours in terms of cognitive repair. The next step is to recognise the value of those 90- to 120-minute cycles. If you have ever been woken up by something in the middle of the night and felt like you were waking from a coma, the likelihood is that you were trying to wake up from Stage 3 or 4 –
your deepest sleep. Waking from the REM phase or Stage 1 is normally pretty easy, whereas waking from Stage 3 or 4 not only takes effort, it also tends to carry with it what is referred to as sleep inertia, where you feel groggy for quite some time after waking (sleep inertia can last up to an hour after waking).
The power of napping
Working with science in this instance leads to the wonder that is napping. In my teens, I thought a nap was something my grandmother did in her comfy chair after a cup of tea – now I know it to be a brilliant way to give yourself an extra three to four hours of alertness. The secret is to ensure your nap doesn’t have you waking up at the wrong stage of that sleep cycle. If you’re going to have a nap during the day, make sure it’s for less than 30 minutes or more than 90 minutes.
“The biggest challenge may be overcoming the inherent cultural inertia that exists within law regarding workload and fatigue management.”
In an environment in which coffee is the fuel that gets you through the day, a nap may seem out of place, but the alternative scenario is a workplace where fatigue levels are increasing and caffeine starts to be insufficient. Increasingly, we are seeing cases where the next steps to increase alertness at law firms involve recreational drugs, which then affects your subsequent sleep quality. The vicious cycle continues and it’s all downhill from there. Naps are free and, when used effectively, have a huge benefit in regards to alertness and overall fatigue management. Twenty minutes for a three- to four-hour improvement? Sounds just fine to me, and the science backs it up. These are not complicated concepts, but the biggest challenge may be overcoming the inherent cultural inertia that exists within law regarding workload and fatigue management. Law is a competitive environment with plenty of type A personalities, but in that sense it is no different to aviation (especially military aviation). A few generations back there was some resistance from the stereotypical, overconfident pilots who thought human performance limitations didn’t apply to them. But recurring smoking holes in the ground tended to prove them wrong time and time again. Today, human factors – and especially fatigue management – are embedded firmly in my role, and every professional pilot out there knows that no amount of overconfidence in your own ability can overcome the basic elements of fatigue science. I encourage you to take a leaf out of the aviation world – and get some sleep. Chris McBurnie is an airline pilot and the co-founder of HumanE Factors, a consulting business specialising in human performance. Chris and co-founder Adam Turner are former military pilots with 41 years of combined service, which included combat operations in Kyrgyzstan, Iraq and Afghanistan. Visit humanefactors.com
A P R I L 2 0 19
p42-45_Feature04_Fatigue_AJ04.indd 45
|
45
28/3/19 5:51 pm
I D E A S | A N A LY S I S | I N S P I R AT I O N
Photos (from lef t to right): Lechatnoir/iStock; MIT Media Lab
Illumination
46
|
A P R I L 2 0 19
p46-51_Essay01_MeToo_AJ04.indd 46
28/3/19 5:52 pm
I L L U M I N AT I O N
SEXUAL HARASSMENT
#MeToo in Asia: Breaking down barriers
As the #MeToo movement spreads around the globe, many women in Asian countries are fighting their own unique battles against legal, cultural and societal norms which entrench gender imbalance. PUJA KAPAI writes.
W
hen allegations of rape moving from the West to the East and sexual assault should give us pause to reconsider. against media mogul The trajectory of #MeToo in Harvey Weinstein broke Asia reveals the importance of in October 2017, nobody envisaged what understanding developments within would come next. As the number of their distinct contexts and local women reporting details of Weinstein’s settings in order to map the unique transgressions snowballed, the term journey undertaken by different ‘metoo’ – coined in 2007 by activist communities to forge pathways to Tarana Burke to empower young gender justice against sexual violence. women of colour from less well-off Each jurisdiction has varying communities to recognise they are not cultural, social, political and legal alone – was repurposed by Hollywood contexts. The nature of laws, their actress Alyssa Milano into #MeToo on scope, the competence and capacities social media. As millions around the of frontline personnel, including globe named perpetrators and shared police, lawyers and judges, and the details about acts of violence and society’s institutions as a whole oppression, they stood in solidarity will often determine the specific with others who had experienced mix of challenges victims of their own #MeToo moment. sexual violence face, and the They mobilised, where effectiveness of the avenues possible, to bring to account for redress. abusers everywhere. Added to this mix is often However, just as global the distribution of men and history does not begin with the women in positions of leadership Tarana Burke, and their role in enabling story of colonialism, tracking who coined the patriarchal structures and the development and spread of term 'metoo' the #MeToo movement as a trend value systems.
A P R I L 2 0 19
p46-51_Essay01_MeToo_AJ04.indd 47
|
47
28/3/19 5:52 pm
I L L U M I N AT I O N
Globally, one in three women will experience sexual violence at least once in the course of her lifetime, and one in two women in Asia are poised to experience gender-based violence (GBV) during their lifetime. However, it remains one of the most underreported crimes. The United Nations Convention for the Elimination of All Forms of Discrimination Against Women is one of the most widely ratified treaties in the world. Despite this, the state of gender equality and laws targeting violence against women is wanting, even across countries that have legislation against GBV. The challenge comes down to the fact that, at the end of the day, law is a reflection of the society in which it is created and enforced. For example, the fact that India has stringent and updated laws against sexual violence has not seen more victims coming forward or perpetrators ultimately convicted. Between 2012 and 2014, a total of around 31,000 reports of sexual violence were filed, but only 150 of these resulted in a conviction. A 25 per cent conviction rate in the broader legal system and the 30 million cases pending determination almost guarantees the perpetrator can get 48
|
away with rape and sexual assault. India recently introduced the death penalty for those who rape a minor under 12. However, this hardly acts as a deterrent. It simply places child victims at greater risk of being killed so it is harder for perpetrators to get caught. Coupled with the reality that 98 per cent of victims in such cases know their perpetrators, the pressure on victims, parents and extended families to keep mum about the abuse is crippling. India’s moment of reckoning came in December 2012, when 23-year-old Jyoti Singh was gang-raped on a bus in the national capital of Delhi and left to die by the roadside. The brutality with which she was violated shook the nation to its core. The people of India found the victim – a young medical student out to see a movie with a friend – deeply relatable. Seldom had the public’s sympathies been triggered in this way, activating their own fears about whether their daughters or sisters were in danger. Protests against GBV ensued, with girls and women baring signs asking #AmInext? – before #MeToo became a global movement. However, these protests betray India’s willful ignorance of the plight of the Dalit (the untouchables), transgender people, women and girls in poverty, and orphans and girls with disabilities,
who are routinely subjected to sexual violence and trafficking, and whose voices are seldom heard or believed. The atrocities perpetrated along intersectional fault-lines of caste, colour and religion remain invisible.
Cultural codes as gendered constraints
The role and presence of women in the workplace and in certain public domains in Asia is an evolving phenomenon which countries are experiencing differently. In Japan, for example, only 8 per cent of senior roles in companies employing more than 100 people are filled by women. Women working outside of offices are often considered to serve at the pleasure of men. They are expected to laugh at lewd remarks or unwanted touching and to smile politely. In a society where a third of Japanese women have reported being sexually harassed at work, 63 per cent have opted to stay silent. When a tape recording of Vice Finance Minister Junichi Fukuda reportedly harassing a female reporter by making sexual requests was released, Fukuda said, “Sometimes I have fun playing word games with girls at the club. I’m unaware of saying something that would be defined as sexual harassment.” The Finance
Photos: Ramesh Lalwani/Flickr
When the law fails you
A P R I L 2 0 19
p46-51_Essay01_MeToo_AJ04.indd 48
28/3/19 5:52 pm
I L L U M I N AT I O N
Protesters seeking justice for rape victim Jyoti Singh.
Ministry cleared Fukuda of all charges, although he was given a stern warning and eventually stepped down from his position. TV Asahi later revealed it was one of its reporters who had been sexually harassed and acknowledged their inaction despite numerous complaints over a year and a half. This incident gave rise to #withyou, as well as protests at the Lower House of the Japanese Parliament with the message: “silence won’t protect you”. A Japanese hashtag translating to “I won’t be silenced” trended on Twitter. As in other parts of the world, pan-Asian cultures have hierarchised the sexes, relegating women to the second sex where the role of women has traditionally been (and, in many respects, continues to be) to service the interests of men, families, and society as a whole. To this end, cultural norms strictly police the appropriate boundaries of conduct for men and women, and the importance of maintaining face and
family honour. Honour is distinctly tied to women’s bodies through policing women’s activities, clothes and expressions of sexuality and sexual desire. In India, the response to the rise in sexual violence against women, largely in the wake of the rise of female labour force participation in urban centres, has been to suggest they cover up, not wear Western clothes, and not stay out after dark. In China, legislation to combat domestic violence has only recently been introduced. This was previously deemed a private matter between families and not subject to state regulation. In Japan, when Shiori Ito, the journalist credited as being the first to use #MeToo in Japan, went public with her story of being plied with alcohol and raped by Noriyuki Yamaguchi, a senior male journalist with close ties to Prime Minister Shinzo Abe, she was called a slut and a prostitute. Her outspokenness was deemed shameful and her nationality
“The culture remains that women who report are usually judged, disbelieved, seen as troublemakers, demoted, or blacklisted.”
was questioned, since “true” Japanese women would “know better than to speak about such a shameful occurrence”. A top police official urged that Yamaguchi’s court-issued arrest warrant on charges of rape be suspended, enabling Yamaguchi to avoid detention. Prosecutors dropped charges of sexual assault, citing insufficient evidence. In May 2017, Ito filed and is still fighting a civil suit after the rejection of her petition to overturn the prosecution’s decision to drop charges. It is against this backdrop that the potential and prospects of the #MeToo movement in Asia must be examined.
Victim named is victim shamed
Pervasive concerns around female and family honour, together with social mores and values that typically shame a victim rather than the perpetrator, act to reinforce silence. Even in the case of Jyoti Singh in the Delhi gang rape, there was much victim-blaming and judgment against her for wearing jeans and watching a Western movie with a male friend after dark. These attitudes are not confined to contexts lacking rule of law or seemingly less progressive states. In Hong Kong, for example, Secretary for Security Lai Tung Lok advised women to drink
A P R I L 2 0 19
p46-51_Essay01_MeToo_AJ04.indd 49
|
49
28/3/19 5:52 pm
I L L U M I N AT I O N
less alcohol to avoid being raped. His comments, which came in response to the statistics released in 2013 revealing a 60 per cent uptick in sexual assault and rape cases in the first three months of that year (35 cases in total), sparked a city-wide outcry and led to widespread condemnation. The culture remains that women who report are usually judged, disbelieved, seen as troublemakers, demoted, ostracised or blacklisted. In some instances, they are seen as “reputationally ruined”, stripped of dignity and, therefore, entitled to be taken further advantage of since they have already been “stained”.
#MeToo USA
#AmINext? India
#WithYou Japan
#Rice Bunny China
Patriarchy punishes empowered women who turn to law
In March 2015, China’s “Feminist Five” were arrested for “picking quarrels and provoking trouble”. The group had largely gone unnoticed until their arrest for planning to distribute stickers on International Women’s Day in protest against sexual harassment on public transportation brought them global attention. As single, lesbian and/or queer women, the five have become the face of feminist risings against patriarchy in China, posing a distinct threat to the Communist Party. Despite their release after a long spate of interrogations, they remain suspects, being investigated for criminal activity and subversion against the state. It is against this backdrop that China’s response to censor the use of #MeToo on social media platforms needs to be understood. China’s #MeToo moment took the form of a Chinese computer scientist residing in the US writing an open letter outing her doctoral supervisor, Professor Chen Xiaowu of Beihang University, as someone who sexually harassed her 12 years earlier. She was prompted by the anonymous accounts which other students of Chen posted on an online forum. Her letter spurred five other former students to speak out against Chen’s sexually predatory behaviour. This eventually led to Chen’s dismissal from Beihang and prompted 50
Hashtags used around the world students at different institutions in China to share their stories. When they faced the full wrath of state censorship against #MeToo-related posts, they adapted and coined the term “rice bunny”, which phonetically sounds like #MeToo, to continue the momentum. On the other hand, there are limits to how far victims can expect the system to deliver justice. Take the case of Hong Kong film director Sharon Lam, who sought to file a police complaint after accusing a trainee pilot of attempted rape. Hainan Airline representatives interceded at the police station, advising her to drop the case lest she be sued for assault, since she fought off her attacker. It was not until Lam went public with her story that the pilot was suspended. In both India and China, the law of defamation has been used as a weapon to fend off charges by victims. In the case against journalist Priya Ramani in India, who made allegations of sexual assault against Union Minister MJ Akbar, once a prominent editor, Akbar brought defamation charges and has amassed a team of 94 lawyers to represent him. Arguably, the tactic is designed to use sheer might to deny
victims their own narratives and destroy their credibility before their cases get off the ground. Alok Nath, a prominent Bollywood celebrity, has done the same in response to allegations made against him regarding rape. Unusually for India, both men have been charged.
The “perfect victim” and rape myths
Apart from these initial hurdles which determine whether women will share their ordeal with anyone – let alone law enforcement bodies or other complaint mechanisms – victims have to contend with the many stereotypes about the “perfect victim”, who is defenceless, demure, or so subdued that she could not fend off the strong perpetrator who was big, aggressive, and could not be overcome. Victims have to fight these stereotypes to establish their noncomplicity in what has happened – to displace the default blame ascribed to them for attracting such trouble. In doing so, women have to meet a high bar to fit themselves within the societal and legal framing of the “perfect victim”. However, studies have shown that our beliefs that victims would share
| A P R I L 2 0 19
p46-51_Essay01_MeToo_AJ04.indd 50
28/3/19 5:52 pm
I L L U M I N AT I O N
contemporaneous accounts or seek help soon after, or be crippled and dysfunctional for some time in the wake of such an attack, are ill-founded. This is a global phenomenon – even in countries where women are seemingly free to speak, there is a culture of silence. There is a variety of responses to such atrocities experienced by different people in different ways. Some of them may reach out immediately while others may suppress such memories which manifest as latent trauma eventually. There is no one way to process such trauma.
Reconciling the gentlemanrapist contradiction
Like our expectations of the perfect victim, we also harbour certain stereotypes about sexual predators and rapists. Perfectly polite and wellrespected gentleman also have displayed their capacity for abusing their power in the form of sexual aggression. Oftentimes, people are quick to defend those with allegations made against them with familiar but illogical assertions that he is a family man, devoutly religious, or a compassionate leader – all used to cast aspersions on a victim who is accused of negligently tarnishing a good man’s reputation and standing in the community. When allegations of rape and sexual assault against Ahn Hee-Jung, a rising political star in South Korea, gripped the nation, there was initial discussion around how the accusations threatened to mar his chances of accession to political office at the national level. In August 2018, the Seoul Western District Court absolved Ahn of all charges, finding that the victim’s behaviour, including going to a wine bar with him the day after the alleged rape while on a business trip, cast doubt as to whether the victim’s “sexual freedom” had been infringed. However, in a groundbreaking turn of events, in February 2019, the High Court overturned this verdict, convicting Ahn of rape on account of his awareness of the power he wielded over her as well as the
alignment of her testimony with that of other witnesses. Ahn was sentenced to three-and-a-half years imprisonment.
Breaking the shackles of cultural censorship
Change is certainly afoot. Various universities in China have taken steps to remove serial sexual predators. In China, Korea, Japan and India, the movement is clearly building on decades of feminist organisation and activism to challenge the widespread perpetration and tolerance of sexual violence as a privilege of the elite, powerful and well-connected. In the past 18 months, these communities have begun to mobilise, work around censors, and speak out to deliver their public verdict on such abuse. The developments in China show that even state censorship and victim-blaming can be circumvented through the creative use of technology. Institutions and those in power can no longer afford to turn a blind eye or be seen to condone such conduct. The public nature of #MeToo justice has helped galvanise new societal forces that stand with victims of abuse, as evident in South Korea where nearly 60 people showed up in support of the victim in the court case involving politician Ahn. In the ensuing months, apart from the numerous Hollywood industry men who found themselves implicated in #MeToo allegations, 183 prominent figures from across different sectors, including television and print media, academics, members of parliament,
“It is time to ... turn bystanders and enablers into allies who act against the perpetrators of such abuse.”
state and country leaders, and prosecutors have been brought down according to Time Magazine (February 2019). The volume and depth of the accounts against individuals have demonstrated the sheer magnitude of the scourge across industries and countries globally, citing the many ways in which the perpetrators routinely abused their positions of authority with impunity and, more importantly, depended on a patriarchal system which entrenched their power and facilitated their abuse. It is this system that #MeToo threatens to destablise. It is now possible to use anonymous reporting to seek out other victims to build a case against a serial sexual predator in a manner that was not conceivable before. This helps address multiple facets of the gender justice gaps, including victimblaming and shaming, undermining the testimony of victims on grounds of credibility, and the silencing of victims for reasons of honour. However, #MeToo has centred the perpetrator as the subject of dishonour and distrust. This has fomented the unravelling of the tight networks connecting powerful men together and, as these ties begin to fray, such connections are deemed politically, socially, and professionally corrosive. As the revival of gender justice forges forth, there is much work to be done. Homegrown approaches and cultural shifts are essential for lasting and meaningful change. These serve as the seeds and the soil to ensure their proper conditioning to enable the protection of all women against GBV and the success of any legal claims brought against abusers. It is time to work within our communities to turn bystanders and enablers into allies who act against the perpetrators of such abuse, and to create a tipping point for a new normal – one which is free from gender-based violence. g Puja Kapai is an Associate Professor and Convenor of the Women’s Studies Research Centre at the Faculty of Law of the University of Hong Kong.
A P R I L 2 0 19 |
p46-51_Essay01_MeToo_AJ04.indd 51
51
28/3/19 5:52 pm
I L L U M I N AT I O N
Benny Tai Yiu-ting speaks outside the government complex in the Admiralty district, Hong Kong. An Associate Professor of Law at the University of Hong Kong, he co-founded Occupy Central with Love and Peace, a non-violent civil disobedience campaign to pressure the Hong Kong government to implement full democracy.
52
|
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 52
28/3/19 5:53 pm
I L L U M I N AT I O N
RULE OF LAW
The rule of law knows no borders
Those who enjoy the protection of strong legal frameworks must have the courage and honesty to speak up about difficult issues affecting the rule of law within the region, writes ARTHUR MOSES SC.
Photo: Rayman Cheuk/iStock
T
he diverse approaches our neighbours take to enshrining human rights and the rule of law across our region should be a cause for celebration and consideration. There is much we can learn from each other. Different methods and solutions provide legal institutions and governments alike with a wealth of models that can inform our efforts to reform and improve the law. Growing support for the “convergence” of commercial laws in Asia is but one example. Better integrating Asian economies through regional and global trade has improved the lives of billions of people. However, that economic growth has also disproportionately benefited an increasingly select group of wealthy individuals. Our legal professions must ensure that convergence facilitates good business practices, not merely what is good for business. Regardless of which geographic jurisdiction we practise within, there is much our respective legal professions have in common. As lawyers, we share a mutual respect for the rule of law. That respect compels us to shoulder
a shared obligation to promote and fiercely defend the rule of law, the administration of justice, and universal human rights whenever and wherever these come under threat in our communities – even and most especially when it is unpopular to do so. That responsibility necessarily extends to supporting our colleagues across borders. And to speaking out on their behalf when others seek to suppress their rights, threaten their freedoms or silence their voice as an independent legal profession. While the challenges faced in each jurisdiction are different, we share the responsibility to remain vigilant, for complacency can be just as dangerous as ill intent. Values of democracy, the exercise of freedom and the rule of law are hard won but easily undermined. That responsibility also demands we be honest with each other, and ourselves, about areas requiring improvement. Inadequate legal frameworks in any country can impact the rule of law throughout the region. Respect for national sovereignty is undoubtedly important. Yet we must always carefully consider the
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 53
|
53
28/3/19 5:53 pm
I L L U M I N AT I O N
ramifications of legal developments in our region. Where these developments do not accord with our values, we must consider how to promote alternative approaches and present counterarguments. If we do not, we risk seeing the broader adoption of legal frameworks that fall well short of international best practice. A recent disturbing example is the decision by Sri Lankan President Maithripala Sirisena to end his country’s 43-year moratorium on executions. This decision has been encouraged by Philippines’ President Rodrigo Duterte’s “war on drugs”, which President Sirisena described as “an example to the world”. There has been no shortage of public criticism of hard-line drug policies in 54
|
Sri Lanka or the Philippines, so we may legitimately question whether adding our voices will make any difference. However, we must also be wary that our silence is not interpreted as indifference, acquiescence or agreement. With these considerations in mind, the Law Council of Australia has also recently had cause to reconsider our approach to rule of law and legal frameworks in China. The Law Council has taken the step of calling on our regional colleagues to join together to ask the United Nations to investigate international concerns over China’s handling of several cases, including the trial of prominent human rights lawyer Wang Quanzhang. We have not taken this decision lightly. Mr Wang was one of several
hundred legal activists arrested in July 2015 as part of the “709” crackdown and had been on trial in a closed court in China. In January 2019, Mr Wang was sentenced to four-and-a-half years in prison for “subversion of state power”. He has also been stripped of his political rights for five years and barred from legal practice. The detention, subsequent charging, conviction and imprisonment of Mr Wang, in the absence of a public hearing or any evidence being disclosed, appears to constitute several breaches of the United Nations’ Basic Principles of the Role of Lawyers (the Principles). The Principles exist to protect individuals who are charged and promote a fair trial by ensuring they are able to access the lawyer of their
Photos: Rayman Cheuk/iStock
Amid screams and cursing, a police officer shouts af ter clashing with protesters in Mongkok district, Hong Kong.
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 54
28/3/19 5:53 pm
I L L U M I N AT I O N
Pro-democracy protesters prepare to clash with riot police behind the barricades in Mongkok district, Hong Kong.
choice to act for them without fear or favour. The Principles also protect lawyers, such as our colleague in China Mr Wang, who are called to act for unpopular persons or persons whom a government alleges has broken the law. It is vital for every nation to have an independent legal profession that can practise without fear of reprisal. Principle 1 states that all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. Further, principle 16 provides that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference
“While the challenges faced in each jurisdiction are different, we share the responsibility to remain vigilant, for complacency can be just as dangerous as ill intent.�
and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties. Any suggestion that the Principles have been violated in any jurisdiction must be carefully investigated. The Law Council is working with our colleagues to raise these concerns and call for an urgent investigation by the United Nations into Mr Wang’s case to ascertain if China is in breach of its obligations as a member state. It is vital that lawyers work collaboratively across jurisdictions to protect our colleagues when they are affected by such conduct from the State in circumstances where it would
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 55
|
55
28/3/19 5:53 pm
I L L U M I N AT I O N
Refugee activists along with the Socialist Alliance and University Students, protest in Melbourne, Australia, against sending children back from
appear, on the evidence available, that an accused was simply discharging their normal functions and duties as a lawyer. The handling of Mr Wang’s trial may have a chilling effect on lawyers called to act against the State in China, including counsel for the ChineseAustralian writer Yang Hengjun who has been detained in China on suspicion of “endangering national security”. Mr Wang’s conviction has heightened apprehensions as to whether the rights of Mr Yang can and will be robustly defended. The Law Council continues to hold grave concerns for Mr Yang and has made representations to the Australian Government seeking diplomatic assistance to ensure he is fairly treated. The Law Council is also concerned by China’s sentencing of Canadian citizen Robert Lloyd Schellenberg to death following a sudden retrial on 14 January 2019. Mr Schellenberg had been 56
|
convicted of drug smuggling in 2016 and sentenced to 15 years’ imprisonment. These cases lend support to an emerging view that the Government of China appears to be engaging in a broader pattern of activity that sees the rights of individuals routinely violated in service of broader domestic and foreign policy objectives. There is concern that this pattern of activity may be an attempt to influence foreign state counterparts and deter individuals with personal and professional connections with China from expressing their views about Chinese government policy. This includes many people (including lawyers) with connections to China who live, work and study beyond China’s borders. Despite China being a signatory to the International Covenant on Civil and Political Rights (ICCPR), a person who is arrested may not receive information
about the reason for their detention, may not have access to the courts or independent legal representation, and may face very difficult conditions of detention. People are routinely held for months or years under these conditions. Communication with family members and, in the case of foreigners, consular officials, is also extremely limited. In 2017, former Australian Attorney-General George Brandis QC entreated international colleagues at the International Bar Association (IBA) Annual Conference that as lawyers we “must always be alert to ensure that due process is always observed, that the right of access to the courts is never denied, that the role of lawyers in representing their clients is always respected, that judicial power is not subordinated to executive discretion, and that ministers and officials always respect the rule of law and the authority of the courts ...”.
Photo: David Hewison/iStock
onshore camps to Nauru offshore centres, in 2016.
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 56
28/3/19 5:54 pm
I L L U M I N AT I O N
However, Australia cannot in good conscience be critical of others if we do not apply the same scrutiny to our own laws and advocate with the same tenacity to promote the rule of law and human rights in our own jurisdiction. This is especially so in relation to offshore immigration detention and the treatment of asylum seekers on Nauru and Manus Island. But concerns have also presented in other areas that occupy less media and public attention. Last August, the Law Council released its landmark Justice Project report, which painted a grim picture of the challenges Australians face in accessing justice in this country. The report found that Australia’s legal assistance sector is critically and chronically underfunded, with the consequence that thousands of Australians are unable to afford to access justice. While around 14 per cent of Australians live under the poverty line, legal aid is only available to 8 per cent of people. Our community legal centres, which are often relied upon for civil legal assistance, turned away nearly 170,000 people nationally in 2015-16. Aboriginal and Torres Strait Islander-specific legal services are under extreme pressure and some family violence prevention legal services have had to turn away 3040 per cent of people seeking help. Furthermore, under-resourcing of Australia’s court system is having a significant and deleterious impact on justice outcomes, including the delivery of timely and fair justice. The Justice Project calls for a wholeof-government approach to justice issues, including the introduction of Justice Impact Tests, which would require governments to actively
consider the trickle-down impact of new legislation or policies on the justice system. One clear difference, however, in respect of these examples is that as part of the Australian legal profession, the Law Council and its members are fortunate to be well supported by strong institutional norms that favour and uphold the independence of the profession. We may therefore criticise laws and public policy without fear of adverse treatment, recriminations or punishment, because of this independence. This protection comes through advocacy within our home jurisdictions as well as across borders, through solidarity with and encouragement of each other. While Australian governments do not always agree with responses received from the legal profession, civil society and others, they do accept the importance of this input to improve laws. Comments, robust criticism and an independent legal profession are therefore welcomed as necessary and beneficial to the rule of law in Australia, consistent with the Principles. Unfortunately, not all our regional colleagues enjoy the same benefit. We must continue to support other nations fighting for a fair and just legal system. As beneficiaries of this freedom, it is incumbent upon us to support and encourage lawyers working to secure the profession’s independence in their own nations. The Law Council hopes to work with our neighbour professions to encourage more open discussions across our region, as open dialogue is essential to drive the development of just, strong, accessible and independent legal frameworks, which benefit us all.
“[We] must have the courage and honesty to speak, and a determination not to shy away from difficult issues.”
The Justice Project In 2018, the Law Council released its Justice Project report, which painted a grim picture of the challenges Australians face in accessing justice. The report found that Australia's legal assistance sector is critically and chronically underfunded, with the consequence that thousands of Australians are unable to afford to access justice.
Speaking to a group of Australian lawyers in Sydney in 2016, LAWASIA President and former President of the Malaysian Bar Council Christopher Leong observed that, “Whilst there may be times where we are powerless to prevent injustice, there must never be a time when we fail to act or speak up against it”. These words are both an enduring hope and a personal challenge to each and every lawyer, regardless of where they practise in our regional community. Those of us who enjoy the protection of these frameworks must have the courage and honesty to speak, and a determination not to shy away from difficult issues, whether in our own countries or in the region – and faith that our words will be received in the spirit they are intended. Arthur Moses SC is President of the Law Council of Australia.
A P R I L 2 0 19
p52-57_Essay02_LawyersinChina_AJ04.indd 57
|
57
28/3/19 5:54 pm
Photo: Chris Gleisner
I L L U M I N AT I O N
58
|
A P R I L 2 0 19
p58-63_Essay03_Judiciary_AJ04.indd 58
28/3/19 5:56 pm
I L L U M I N AT I O N
JUDICIARY
Judging the judges
At the annual Opening of Law Term Dinner in Sydney on 30 January, HIS HONOUR TOM BATHURST AC ruminated on the state of judicial accountability.
T
owards the end of last year, the Australian Financial Review (AFR) published a series of articles dissecting the productivity of judges of the Federal Court of Australia based on published judgments, as measured by average words written per day, average paragraphs per day, and average days to deliver judgment. Individuals were ranked in a table and the suggestion was made that the speed of justice was unjustifiably slow. The blame was placed squarely on the judges on the basis that “the data suggests that [they] could finish their cases more quickly by better time management”. In response to criticism of their methods from legal and judicial organisations, including the Court itself, the AFR hit back. They said, “Many professions and industries are assessed using quantitative measurements”, and that “bankers, stockbrokers, doctors, sportspeople, entertainers and business owners know this”. Even at the AFR, every reporter’s performance “measured by the popularity of their articles over any time frame, can be seen by any editorial employee”. It concluded that, as compared to Members of Parliament and Ministers, who are subject to “intense scrutiny of their performance, often on a daily basis”, the “judiciary is the least accountable” of the three arms of government. A few weeks later, the leader of the Opposition in Victoria made an election
promise of “greater accountability and scrutiny” of judges in that state. He promised to publish “performance information” of individual judges, including their “sentencing records” – I assume meaning what sentences they gave for particular offences – and the number of their judgments overturned on appeal. He stated that the intention of these reforms was to “see exactly what sort of sentences individual judges and magistrates are imposing for what sorts of crimes” because “there is no reason for denying the public this important, basic factual information about how judges and magistrates are performing their roles”. The impression to be gained from the proposal was the same expressed more explicitly by the AFR: that the judiciary is at present unaccountable in a manner contrary to the public interest. Because I have the greatest respect for the AFR, I am going to resist the temptation of considering what would happen if parliamentarians, doctors, bankers and perhaps even the AFR itself were judged on the metrics suggested. But, just a few examples: suppose parliamentarians were judged by the number of speeches they made, or the number of 30-second grabs per day they did. Some might say a chatty politician is a good politician. Others might say, “I just wish he or she would shut up”. Let’s take the AFR itself. It is common knowledge that every subscriber turns first to “Rear Window” to read about the latest corporate gossip.
A P R I L 2 0 19
p58-63_Essay03_Judiciary_AJ04.indd 59
|
59
28/3/19 5:56 pm
But that does not mean the AFR should simply consist of a gossip column. Noone would subscribe to it if it was. This really shows the difficulty with pure quantitative analysis. For a more serious example, we could take doctors. No-one would want to judge the performance of doctors by the number of patients they see on a given day. That is plainly not necessarily the measure of a good doctor. And I don’t think, at least these days, a good banker would be judged by the profits he or she earns, or by the salary or bonuses which he or she receives – certainly not if Mr Hayne has anything to say about it. Quantitative analysis certainly has its place. But, in the case of the judiciary, and I think most professions 60
|
and businesses, what accountability – or a deficit of accountability – requires is a far more nuanced approach.
Accountability
It is to this proposition that I now want to turn — to whom are judges accountable? And for what, and in what ways? More to the point, just how unaccountable are they? In terms of whom, at one level the function of the judiciary is to resolve disputes between parties by the application of the law to facts. To that extent, they are accountable to the parties in any given case. However, as has been said on many occasions, the judiciary is not simply a publicly-funded provider of dispute resolution services;
it is the third branch of government. It performs the governmental function of enforcing legal rights and obligations to the benefit of society as a whole. It must therefore be accountable to the public at large, whose interests it exists to serve and, I might add, who fund its operations. What does accountability mean? At its heart, the concept is simple: it is the obligation to give reasons or an explanation for decisions or conduct. The perception that the judiciary is unaccountable is, I think, grounded in a misconception that accountability must come with a “sacrificial” element: that is, where those reasons or explanations are inadequate, a sanction, penalty, or dismissal must follow.
Photo: Chris Gleisner
I L L U M I N AT I O N
A P R I L 2 0 19
p58-63_Essay03_Judiciary_AJ04.indd 60
28/3/19 5:56 pm
I L L U M I N AT I O N
Except in cases of proved misbehaviour or incapacity, judges are shielded from “sacrificial” accountability by security of tenure, which is the ultimate guarantee of judicial independence and, in turn, the separation of powers. I will return momentarily to the importance of this, but I first want to outline why it is misleading to point to the lack of “sacrificial” accountability as if it is sufficient to prove the claim that judges are unaccountable. In fact, the concept is far broader than that, and can involve a variety of different processes and methods. Professor Graham Gee, in the United Kingdom context, has noted that there is also “explanatory” accountability in the sense of a duty to explain or justify, “content” accountability in the sense of responsibility to an appellate court for the substance of a decision, and “probity” accountability, which includes accounting for the expenditure of money. Judges, both individually and collectively, are subject to accountability in all these forms. First, in adherence to the “open court” principle, judges conduct almost all the business of judging in public. The High Court has said the rationale of that principle “is that court proceedings should be subjected to public and professional scrutiny”. Bentham, many years before, said that “publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity”. This is because exposure to public scrutiny and criticism creates an environment in which abuses are less able to flourish undetected. In exceptional circumstances, courts do act contrary to the “open court” principle. Those exceptions are limited, but exist for good reason, such as where the proceedings are being brought in relation to trade secrets or in matters affecting national security. In general, however, courts function in public, even where it might be painful or humiliating for the parties. These things are endured because on
the whole, public trials are the “best security for the pure, impartial and efficient administration of justice”. Second, judges must give reasons for their decisions. This is a defining feature of the judicial process and, as a form of accountability. As former Chief Justice Gleeson asked, “Apart from judges, how many other decisionmakers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions?” The other two arms of government have, in recent years, subjected themselves to greater transparency with the advent of legislation to compel the production of government information. However, this has long been “in the nature of things” for the courts. It is somewhat ironic that the claim that the judiciary is the least accountable branch of government emerged from a publication which, in the next breath, was able to report the words and paragraphs per day that individual judges were apparently producing, using publicly-available information. Reasons also promote good decision-making. As a general rule, being obliged to explain a decision in a manner open to scrutiny is more likely to result in a reasonable decision which, in turn, is more likely to be acceptable to those whom it affects. It is also consistent with the requirement of (and I quote from Murray Gleeson
“Apart from judges, how many other decision-makers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions?” Former Chief Justice Murray Gleeson
again), “a democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions”. The public nature of those reasons is also significant, as they are thereby exposed to contemporaneous analysis by not only the public and the media but also the legal profession. While these mechanisms of accountability are informal, they are nevertheless powerful. Judges must publicly accept responsibility for their decisions, and it is not inconsequential to have your work subjected to intense public criticism, or indeed collegiate disapproval from other judges or lawyers. Third, most decisions can be subject to the appeal process, whereby decisions are formally reviewed. One of the points made by the AFR was that, while judges say they are “subject to a rigorous appeals process”, “judgment by peers is, by definition, not independent”. This is a view that warrants strong resistance. Judges take an oath, or make an affirmation, to do right according to law, independently, “without fear or favour, affection or ill-will”. This applies whether it be favour towards a party, or favour towards a fellow judge, when the correctness of their decision is subject to appeal. The suggestion that they would do otherwise is not an allegation to be made lightly, and is easily refuted by the simple fact that appellate courts do frequently overturn the decisions of inferior courts. There is one further point which can be made. What is the alternative to “judgment by peers” in these circumstances? A decision on a matter of public interest can provoke a wide variety of views. Is a judge right if, as a result of an Ipsos poll, a majority find his or her decision acceptable, or is he or she right if the law is correctly applied to the facts? I want to suggest the latter. Fourth, judges’ reasons for decision are also exposed to the legislature,
A P R I L 2 0 19
p58-63_Essay03_Judiciary_AJ04.indd 61
|
61
28/3/19 5:56 pm
I L L U M I N AT I O N
“probity” accountability in terms of their use of public resources. What they don’t have is “sacrificial” accountability, by reason of their security of tenure. Unlike the legislature and executive, the public isn’t afforded the opportunity to boot us all out every three or four years. However, as former Chief Justice Doyle has argued, the content of “accountability” varies according to its context. The judiciary is accountable in a way that is compatible with the precepts of judicial independence.
Conclusion
which can, in response, change the law. Now, more so than ever, the bulk of the work of judges in this country involves applying statutes enacted by democratically-elected legislatures. Where the results of that process prove unacceptable to the public, it is open to the legislature to change or clarify the law. Finally – and this goes to “probity” accountability – the judiciary must account for the public resources it uses. The Supreme Court of New South Wales presents an annual review on its stewardship of the resources entrusted to it. It includes information on the timeliness of each Division of the Court, as measured against national benchmarks, as well as listing delays in each Division. It also includes statistics 62
|
on the number of matters filed in the Court and how many cases remained pending at the end of the calendar year. The Department of Justice also furnishes an annual report which includes detailed financial statements. Legislation in some states imposes similar statutory reporting obligations on their courts. The point I am trying to make from all this is simply that the suggestion that the judiciary is unaccountable, or even the least accountable arm of government, is, in my opinion, misconceived. Judges have “explanatory” accountability in their obligation to provide open, public justice and reasons explaining their decisions, “content” accountability in terms of the appellate process, and
This is an edited extract of Chief Justice Bathurst's speech delivered at Parliament House in Sydney on 30 January 2019. His Honour expresses thanks to his Research Director, Naomi Wootton, for her assistance in the preparation of this address.
Photo: Torque/iStock
“What must be considered is whether the courts are performing their role of fairly and impartially administering justice according to law, a function essential to the rule of law.”
What to make of all this? First, courts are, and should be, subject to public scrutiny, and where appropriate, criticism. To facilitate that scrutiny and to assist in ensuring that criticism is informed, courts should operate as transparently as possible. In that way, they become accountable to the other arms of government, and to the public. But the appropriate measure of accountability cannot be determined solely by some form of quantitative analysis of a court’s output. What must be considered is whether the courts are performing their role of fairly and impartially administering justice according to law, a function essential to the rule of law, and to the maintenance of a just and democratic society. Quantitative analysis does have a role to play, providing that the inherent limitations of any particular form of such analysis is recognised, and providing that it is recognised that such an analysis provides no real measure of accountability unless it assists in answering the critical question: are courts and their judges performing their function of administering justice according to law? I would only like to add one last thing: after all that I have said, I am still a reader of the AFR.
A P R I L 2 0 19
p58-63_Essay03_Judiciary_AJ04.indd 62
28/3/19 5:56 pm
AJ04_A
I L L U M I N AT I O N
Advertise with Asian Jurist The leading voice of lawyers across Asia and the Pacific. Asian Jurist is a beautifully designed, sophisticated publication that does not compromise on quality. Our authors are the best journalists in the region. Our contributors are the brightest legal minds across Asia and beyond. Our team is award-winning and committed to excellence. Join us.
3,000+
readers across more than 30 countries
Distributed to all LAWASIA members and conference attendees
Award-winning
Produced by the team behind the Law Society of NSW’s LSJ
To discuss your customised advertising strategy, contact aj@lawasia.asn.au
A P R I L 2 0 19
AJ04_Apr-2019_HouseAds.indd 9 p58-63_Essay03_Judiciary_AJ04.indd 63
|
63
28/3/19 4:47 pm 28/3/19 5:56 pm
Photo: Joel Carillet/iStock
I L L U M I N AT I O N
64
|
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 64
28/3/19 5:57 pm
I L L U M I N AT I O N
TERRORISM
There's no place like home
With the collapse of the caliphate, countries around the world are bracing for the return of foreign fighters. GREG BARTON argues that repatriating ISIS members to face justice is not just stepping-up to our obligations, it is serving our best interests.
I
An Iraqi man walks in the rubble of the heavily damaged Church of St. Ephraim in Mosul, months af ter this part of Mosul was taken from ISIS.
s it conceivable that Australia would refuse a request from New Zealand for Brenton Tarrant, the man accused of shooting dead 50 people in a terrorist attack in Christchurch, to be returned to Australia? The proposition is so clearly preposterous that no one would even think of asking the question. Why, then, do we think it is reasonable to refuse a request from the Syrian Democratic Forces (SDF) – the largely Kurdish group that controls the currently autonomous one third of Syria north of the Euphrates – to take back Australian citizens detained for supporting terrorism in the Kurdish cities and towns which are now under SDF control? We welcomed the SDF through our alliance with the US coalition, which led the long, bloody struggle on the ground to defeat ISIS in Raqqa, and we gladly worked with them in supporting the air campaign. We cheered when the de facto capital of ISIS was liberated, and rightly rejoiced when the terrorists were driven out of the last vestiges of the ISIS caliphate. The final SDF victory in Syria marked the beginning of the end of Australia’s longest-ever military deployment (together with parallel operations in Afghanistan).
The territorial defeat of ISIS came almost 16 years to the day after the invasion of Iraq that created the most potent incarnation of al-Qaeda, and the most powerful manifestation of terrorism that the world has ever seen. Needless to say, when the Coalition invaded Iraq and toppled the Saddam Hussein regime on the pretext of preventing al-Qaeda from establishing a safe haven in the wake of the 9/11 attacks, we didn’t intend to help create the very problem we hoped to forestall.
A costly alliance
It is estimated that the 17-year-long Global War on Terror campaign in Iraq, Syria and Afghanistan has cost the US government more than USD 6 trillion, claimed around 500,000 lives, and led to 21 million people being driven out of their homes to become refugees or internally-displaced people. After 17 years there is no end in sight to the cycle of conflict in Afghanistan. The Kabul government is struggling to control much more than half of the country, and the Taliban forces are stronger than ever – even while competing with break-away factions aligned with ISIS. The fight against the ISIS guerrilla insurgency in Iraq – as it was before and has now become again – is a long way from being over.
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 65
|
65
28/3/19 5:57 pm
I L L U M I N AT I O N
The largely Kurdish People's Protection Units (YPG) is part of the Syrian Democratic Forces (SDF) in Northern Syria, which also includes the all-female unit, the
No time to cut and run
The final defeat of the caliphate after four years and nine months, and the liberation of Raqqa after an even longer occupation, comes as an immense relief. For the international coalition, this sense of relief comes with the temptation to cut and run. President Trump has already called for the withdrawal of US forces from Syria. After the longest of all modern wars, no one wants to stay any longer than absolutely necessary. In the midst of this very natural sense of relief, however, there exists great danger. When Afghan forces, with critical US backing, defeated the Soviet occupation of Afghanistan and triggered the denouement of the Soviet Union, there was no political appetite to invest a fraction of the resources spent in liberating Afghanistan in rebuilding it. In the early 1990s, the West turned its back on Afghanistan and, in the 66
|
chaos that followed, both the Taliban and their international house guests alQaeda grew from strength to strength. While western politicians are talking about the defeat of ISIS, virtually none of the analysts or military leaders who deal with ISIS are convinced the end is in sight. General Joseph Votel, who is responsible for overseeing US military operations in Iraq and Syria, warned in testimony to the House Armed Services Committee on 7 March that: “What we are seeing now is not the surrender of ISIS as an organisation but in fact a calculated decision … taking their chances in camps for internally displaced persons, or going to ground in remote areas and waiting for the right time for a resurgence.”
Prisons a pressure cooker for terrorists to regroup and recruit The issue of what to do with captured
ISIS foreign terrorist fighters (FTF) and associated women and children needs to be seen within the broader context of an insurgency with a long history and the clear intention of a long struggle ahead. The best single piece of recent analysis on this is the March 2019 policy paper written by Elizabeth Dent for the Middle East Institute, "The Unsustainability of ISIS Detentions in Syria". Dent’s report homes in on the key role prisons and terrorist detainees played in the growth of ISIS. In 2012 and 2013, ISIS rebuilt its core of operational commanders through a campaign of breaking terrorist detainees out of prisons around Baghdad called “Breaking the Walls”. As Dent explains in her paper, “One has only to look at Iraq to see how prison breaks and an incapacity to deal with terrorist detainees can cause an insurgency to spread like wildfire. In Iraq’s Camp Bucca, many future ISIS
Photos (from lef t to right): Kurdish Struggle/Flickr; Diy13/iStock
Women's Protection Unit (YPJ).
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 66
28/3/19 5:57 pm
I L L U M I N AT I O N
members, including ISIS leader Abu Bakr al-Baghdadi, conspired together, radicalised other prisoners, and grew their following: former guards at the prison called it a 'pressure cooker for extremism'. Dent concludes her paper with a sober warning: “With all the debate on Syria, we can’t lose sight of this critical issue. The seeds of ISIS 2.0 are in this prison population. How the detention of these fighters is handled is probably the single most important question confronting the mission, yet it’s the one that has been lost … A refusal to address this threat will only cause ISIS to resurge even more quickly, regain territory it lost to the coalition, and reestablish its capacity to plan, coordinate, and carry out attacks against the US and its allies.”
A look at the numbers
More than 42,000 fighters and family members travelled from more than 80 countries to join the ranks of ISIS in Syria and Iraq, including at least 4,800 women and 4,700 children, according to a 2018 report by Joana Cook and Gina Vale for the International Centre for the Study of Radicalisation (ICSR) in London. A further 600 or more children have at least one western or European parent. Return rates remain unclear, but it is thought that as many as one third of the 42,000 foreign members of ISIS have already returned to their countries of origin. This includes approximately
“The SDF ... is asking for sending countries to take responsibility for their citizens and repatriate them to face justice at home.”
400 Britons out of a cohort of more than 800, giving the UK the highest rate of return in Western Europe, closely followed by Denmark (67 out of 145). Germany is substantially lower at 31 per cent (300 out of 960) and France is significantly lower again with only 225 returnees out of 1,910 departees (just 12 per cent). One of the largest cohorts of FTFs came from Tunisia, with at least 5,500 joining ISIS and 1,000 or so having returned. At least 800 Indonesians are thought to have travelled to Syria/ Iraq to join the ISIS caliphate, or other groups, but another 400 or so were arrested in Turkey and deported, with most being processed through the Indonesian system. It is not clear how many others have returned. It took the shocking family suicide bombings in Surabaya in May 2018 for the Indonesia parliament to pass a counter-terrorism bill that made it illegal to support proscribed terrorism groups like ISIS, including travelling to fight with them or otherwise support them. Prior to this, Indonesian police found it very difficult to prosecute returnees and their recruiters and supporters. Nevertheless, even before this much-delayed legislation was passed there was political will within the government to engage with the challenges presented by returnees. Of the 102 Malaysians known to have travelled to the Middle East to join ISIS, 40 have been killed and 11 have returned to Malaysia, resulting in eight being charged, convicted and jailed. As of March, 52 Malaysians, including 17 children, remain in the region of Deir ez-Zor. Consequently, of those still alive, most are now expected to be in SDF camps. Malaysia is actively seeking to repatriate its nationals. Like Indonesia, it has shown a strong commitment to dealing with returnees. For historical reasons, Malaysia’s established counter-terrorism legislation has made prosecution much easier than has previously been the case in Indonesia, but challenges remain with evidence collection. From the beginning there
More than 42,000 fighters and family members travelled from more than 80 countries to join the ranks of ISIS in Syria and Iraq, including at least 4,800 women and 4,700 children.
has been a focus on disengagement, rehabilitation, and long-term postrelease monitoring.
Refugee camps flooded with displaced families of IS fighters
As these numbers indicate, the issue of ISIS returnees is not a new one, with many thousands of people having left ISIS territory to return home since 2016. The current focus on the issue arises because of the unexpectedly large numbers of people, with 60,000 flooding into three SDF camps in north eastern Syria during the first three months of 2019. Most have come out of the final ISIS stronghold of Baghuz. This includes around 7,000 women and children from more than 40 countries. Some estimate that as many as 5,000 children in the camps are foreign nationals (excluding Iraqis), but confirming identify, much less nationality, is difficult as many are unaccompanied. The camp of al-Hawl alone grew from 9,500 people in December 2018 to 70,000 by the end of March 2019. The camp continues to grow despite having a maximum capacity of 55,000. UNICEF had planned for 4,000 children to be schooled in al-Hawl, but by March they were dealing with 22,000 children and rising.
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 67
|
67
28/3/19 5:57 pm
I L L U M I N AT I O N
Hundreds of children arrive severely malnourished and ill, with many dying on the eight-hour journey to the camp through freezing conditions in the back of an open truck. None of the ISIS children have ever been to school, and most display signs of serious trauma and suffering.
Citizenship stripping
Living amidst this miserable population are women whose names are now familiar from media reports, such as American women Hoda Muhana and British-born Shamima Begum, who left home as a teenager to travel to Syria in 2015 and whose baby son Jarrah died on 7 March, just weeks after her citizenship was stripped despite her not being a dual-national. Australian woman Zehra Duman, 24, who has dual Australian and Turkish citizenship, faces a similar fate, as does her close friend Zaynab Sharrouf, whose father, the notorious Sydney-born Khalid Sharrouf, was one of the first to have his citizenship stripped in 2015. Australia has followed Britain and Canada in amending legislation to allow the stripping of citizenship of people who have travelled abroad to join with proscribed terrorist groups. Ostensibly, this can only be done where the subject is a dual national, but, as in the case of Neil Prakash, born in Australia to a Cambodian mother and Fijian father, the Minister for Home Affairs can order the stripping of citizenship without proof of a second citizenship (Fiji rejects the assertion that Prakash has, or could ever have, Fijian citizenship). Prakash played a prominent role as an ISIS recruiter. He was arrested when crossing the Turkish border, following a tip-off from the Australian Federal Police to Turkish authorities. Currently detained in a Turkish jail but eligible for parole in 2021, Prakash had his citizenship stripped when it became clear that Turkish authorities were not going to proceed with Australia’s request for extradition. When he announced his decision 68
|
to strip Prakash of citizenship, Home Affairs Minister Peter Dutton triumphantly proclaimed that Australia was safer for his decision to ensure Prakash never again returned. All of the available evidence suggests that the opposite is true. Prakash was a sad, lost young man when he found a sense of belonging with the extremist al-Furqan centre in south-eastern Melbourne. He travelled to Syria in 2013 as a new convert to Islam and with such little knowledge of ISIS that he did not even recognise its name in Arabic. His relatable story of a lost outsider finding redemption, purpose and belonging was the centre point of a slick ISIS recruitment video. In the years that followed, he was used extensively by his ISIS handlers to reach back into the bedrooms of friends and peers in Melbourne and Sydney via chat forum discussions, social media, and encrypted messaging. This saw him playing a remote role in a number of foiled terrorism plots in Australia. His likely release into Turkey’s sizeable and partially-protected transnational jihadi extremist
A 27-year-old Syrian man stands with two of his three children at a camp for displaced persons in Atmeh, Syria. The family fled violence in their hometown in Idlib province and now live in the camp full time.
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 68
28/3/19 5:57 pm
I L L U M I N AT I O N
community represents a significant future threat. Back online, Prakash will likely once again make a significant contribution to the virtual caliphate’s recruitment activities in Australia. Like Prakash, Zehra Duman also played a significant role in online recruitment and propaganda for ISIS while in Syria. The politics of talking tough about not allowing Australians who travelled to join ISIS to ever return home are at odds with objective assessments of how best to reduce the risk they pose.
Photos (from top to bottom): Zabelin/iStock; Joel Carillet/iStock
Irony of Australia's tough stance
Ironically, of all countries, Australia is in one of the strongest positions to deal effectively with returning FTFs and ISIS supporters. Not only does Australia enjoy the natural advantage of being a wealthy island continent with well-equipped police forces and other agencies – as ell as effective biometric identification measures at ports of entry – it also has one of the clearest and strongest legislative frameworks for efficient and effective prosecution. Amendments to counter terrorism legislation in October 2014 meant that travelling to and residing in a proscribed area constituted an offence, unless it could be proven that there was no association with ISIS. Britain, like many European countries, together with Canada, faces a difficult challenge in proving that ISIS returnees have been actively involved in acts of terrorism. The main challenge has been obtaining robust evidence
from a conflict zone of terrorist activities that is admissible in a court of law. This was also the case with Australian returnees prior to the October 2014 legislation. Indeed, some 35 to 40 Australians did return from Syria and Iraq in 2011, 2012 and 2013, but they have not been prosecuted. As of late March 2019, it is not clear how many Australians – or children born to Australians – are detained in SDF camps in north eastern Syria, beyond the well-known cases discussed above. Clearly, careful assessments need to be made on the ground before repatriation, but there is no reason why the process could not begin immediately. In February 2019, the Home Affairs Minister introduced legislation enabling "temporary exclusion orders" to be applied to those who had travelled overseas and associated with a terrorist organisation, delaying their return for up to two years on the grounds that they may "represent a threat to public safety". This would appear to be designed precisely to forestall the repatriation of Australians from SDF camps. The SDF administration is asking for sending countries to take responsibility for their citizens and repatriate them to face justice at home. In addition, help is desperately being sought to help manage the camps, provide basic services, and enable the proper processing of detainees. Not only would it be extremely churlish for sending countries not to lighten the burden the SDF faces by
“The politics of talking tough about not allowing Australians who joined ISIS to ever return home are at odds with objective assessments of how best to reduce the risk they pose.”
accepting responsibility for their own nationals, it would be ultimately against their own best interests. Countries like Australia might well succeed in delaying repatriations only to be forced to accept the return of women and children after months or years of living in conditions in camps that will only serve to compound the challenges that come with rehabilitation. The humanitarian imperative, particularly when it comes to meeting the rights and needs of children, is compelling. Their parents need to face justice, but that is vastly more manageable in Australia than in an overcrowded camp not designed for processing terrorism detainees.
Repatriation is now an imperative
The clock is ticking, and time is running out. It is not clear how much longer the SDF can retain control over the one third of Syria they have helped liberate. In the face of a long-threatened Turkish invasion from the north, they are being forced to negotiate with the Assad regime in Damascus. There is a great risk that many from the camps will be released without proper processing, as has already happened with thousands of detained Iraqi nationals who have been sent back to Iraq. Even if the camps remain under SDF control, the Iraqi experience of the past decade makes it clear that the camps will be targeted for recruitment and radicalisation from within, serving to produce future cohorts of insurgents who will eventually return to fighting. Repatriating those associated with ISIS, including children in desperate need, processing them, bringing them to justice, and then seeking to effect rehabilitation will be difficult and costly. Shirking this legal and humanitarian responsibility, however, is certain to prove vastly more costly and risky in the long run. Greg Barton is Research Professor, Global Islamic Politics at the Alfred Deakin Institute, Australia, and Senior Fellow with Hedayah, Abu Dhabi.
A P R I L 2 0 19
p64-69_Essay04_ISISFighters_AJ04.indd 69
|
69
28/3/19 5:57 pm
Photo: CUHRIG/iStock
I L L U M I N AT I O N
70
| A P R I L 2 0 19
p70-75_Essay05_ClimateChange_AJ04.indd 70
28/3/19 5:58 pm
I L L U M I N AT I O N
CLIMATE CHANGE
The mainstreaming of climate litigation
A landmark Australian judgment has shone a light on how climate change is now working its way into traditional areas of litigation around the world. MARTIJN WILDER AM and SHARONA COUTTS.
I
Photo: CUHRIG/iStock
n February, a development relating to a proposed coal mine near the small, bucolic Australian town of Gloucester, three-hour’s drive north of Sydney, sent reverberations around the world. But these reverberations were not of the earth-moving variety – they were legal rumblings caused by a decision handed down by the Chief Justice of the New South Wales Land and Environment Court, in which he declined to override the government’s earlier decision not to grant a permit to the mining company. In doing so, he based his decision, in part, on the likely greenhouse gas emissions the mine would produce. “The [greenhouse gas] GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions,” Preston CJ held. “These dire consequences should be avoided. The project should be refused.” Contrary to the thrust of much media coverage, this decision does not necessarily mean the end of any new coal mine approvals in the state, because it was specific to the particular facts. Nor did the decision, in our
opinion, entirely break new legal ground so much as cement existing law. Preston CJ’s decision provided a detailed and thorough analysis of cases and showed it is now accepted in Australian law that certain planning statutes require decision-makers to take climate change into account when considering the social and environmental impacts of proposed developments. His Honour also incorporated into his reasoning detailed analysis of scientific and economic arguments, which showed that greenhouse gas emissions are not only a factor in weighing social and environmental costs and benefits of a proposed project, but may well be the determining factor. In this way, the decision in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 is part of a trend in what is often called “climate litigation” – the mainstreaming of climate change science and economics into traditional areas of law. To be sure, we are still seeing cases in which parties are deploying and developing novel legal arguments with respect to climate change. Writing extra-judicially, Preston CJ recently examined many of these cases in “Mapping Climate Change Litigation”, which appeared in the October 2018
A P R I L 2 0 19 |
p70-75_Essay05_ClimateChange_AJ04.indd 71
71
28/3/19 5:58 pm
volume of the Australian Law Journal. His Honour analysed cases that raise a "public trust" argument, namely that governments have a duty to safeguard elements of the environment – including the atmosphere and the climate – on behalf of humankind. He also discussed climate change cases brought in tort, which have had mixed success. And his Honour looked at cases brought within human rights and constitutional law, including the "children's climate lawsuit" in the US. But if there is a trend worth watching in 2019, it might be the way climate change arguments are being drawn into solidly established fields of law, such as planning, corporate, and fraud cases. Increasingly, we are seeing cases that show climate change is a factual matter that should be addressed in the way courts approach other factual and legal questions. A corollary of this trend is that 72
|
defendants in climate-related lawsuits now seem less likely to deny the science around climate change. Instead, they seem generally more willing to accept that climate change is caused by the emissions of greenhouse gases through human activities, and that it will likely have negative impacts on people and the environment, and to pursue their cases accordingly. This article provides an overview of some key cases that are mainstreaming climate change-related issues within traditional legal arguments.
Climate change as a planning law consideration
In October 2017, the Planning Minister’s delegate refused Gloucester Resources’ application because the proposed mine was in contravention of applicable zone objectives, would have significant residual visual impacts, and was not in the public interest.
That December, Gloucester Resources appealed to the Land and Environment Court against the Minister’s decision. In April 2018, the Court ordered that Gloucester Groundswell – a community group that opposed the mine – be joined as a party to the proceedings. Gloucester Groundswell was represented by the Environmental Defenders Office (EDO), a community legal centre specialising in public interest environmental law. The EDO brought in key experts to provide evidence on matters relating to climate change, including the scientific and economic ramifications of approving the new coal mine as proposed. While there have been a number of other cases around Australia that have considered climate change impacts associated with mines, this is the first major decision since the entry into force of the Paris Agreement and the release of the Intergovernmental Panel on
Photo: Vanessa Jones/iStock
I L L U M I N AT I O N
A P R I L 2 0 19
p70-75_Essay05_ClimateChange_AJ04.indd 72
28/3/19 5:58 pm
I L L U M I N AT I O N
Climate Change’s (IPCC) Special Report on Warming of 1.5 Degrees. Before setting out the basis for considering climate change within the planning framework, Preston CJ first provided a detailed discussion of: • The scientific consensus that human-induced climate change is having, and will have, catastrophic consequences, including citations of the IPCC’s 1.5 degree report; • Australia’s commitments under the Paris Agreement – including the call for net zero emissions in the second half of this century; and • The concept of the “carbon budget”, which sets out the maximum remaining levels of greenhouse gas emissions that can occur before the climate warms above 2 degrees Celsius. Preston CJ then provided a detailed and comprehensive analysis of how greenhouse gas emissions and their direct and indirect impacts are relevant matters for consideration under planning laws and applicable planning instruments in the state of NSW. His Honour’s key findings were: • A decision-maker in applications under NSW planning legislation can take account of downstream greenhouse gas emissions, not just those caused directly by the construction and operation of the site itself. • His Honour noted that the mine proponents had not provided specific plans to offset the project’s emissions, but rather relied on unquantified claims that reductions
•
would occur in other sectors ([529]); and The economics of the project did not stack up, a finding relevant to the legal test of whether approving the mine would be in the public interest.
His Honour’s reasoning regarding the economics was especially noteworthy. Preston CJ provided a detailed overview of the evidence from Tim Buckley, an economist and financial analyst, about the expected price trends of coal, including coking coal for steel. While the company had argued that coal prices were likely to rise due to increased demand from large developing nations, his Honour referred to evidence that demand for coal and steel could actually decline as countries implement their obligations under the Paris Agreement. Specifically, his Honour noted that many countries are taking steps to reduce or eliminate the use of coal. India, for instance, has introduced a tax on all coal, controls on chronic and rising air pollution, and has plans to greatly expand its renewables sector. Further, Preston CJ noted that the International Energy Agency's World Energy Outlook 2017 Report that modelled a Sustainable Development Scenario had found that global demand for coking coal would decline by about 39 per cent relative to 2016 by 2040. Of particular note, Gloucester Resources “did not contest that climate change is real and happening and that anthropogenic GHG emissions must be reduced rapidly” ([451]). It simply argued that the mine could be approved
“Defendants in climate-related lawsuits now seem less likely to deny the science around climate change. Instead, they seem generally more willing to accept that climate change is caused by ... human activities.”
anyway. On the specific facts of the application, that argument failed. The practical implications of this decision are likely to make it much harder for proponents of new coal mines in NSW to win approval, though not impossible. If the project had been able to mitigate its emissions – i.e. through offsets – the grounds for refusing the project in respect of greenhouse gas emissions may not have been as strong. But the question of legal approval is very different from whether an approved project could get financing; the costs associated with obtaining these offsets could affect the profitability of the endeavour. The decision was technically limited to the state of NSW, but we note that the reasoning with respect to how climate change features in legal tests such as “environmentally sustainable development” and the “public interest” could be influential in jurisdictions with legal tests that use the same or similar concepts. It should be noted that the mining company has lodged a Notice of Intention to Appeal the judgment. In our view, the decision vividly illustrates the risks around holding greenhouse gas-producing assets that could become “stranded” as the world moves to rapidly reduce emissions. As the risks around stranded assets are crystalising, so too are the rules and laws that guide what companies must do to assess those risks, and disclose them to regulators, investors and the public.
The rise of climate disclosure
In April 2015, the G20 Finance Ministers and Central Bank Governors asked the Financial Stability Board at the Bank for International Settlements in Basel, Switzerland, to “convene public- and private-sector participants and review how the financial sector can take account of climate-related issues”. This created the Task Force on Climate-related Financial Disclosures (TCFD), which handed down its final recommendations in June 2017.
A P R I L 2 0 19
p70-75_Essay05_ClimateChange_AJ04.indd 73
|
73
28/3/19 5:58 pm
First, they strongly urged directors to identify, assess and disclose the risks and opportunities to their businesses posed by climate change. Second, they provided the outlines of a framework for how to do so. These recommendations have already made a significant impact in companies’ approach to assessing, managing and reporting risk. By September 2018, 513 companies had signed on as “supporters” of the initiative. The recommendations have also spurred a broader conversation about how businesses will be affected by climate change; a shift in lens from even a few years ago, when the focus was mostly on how the climate was being affected by business. In the Australian context, these recommendations did not forge new paths, but did reinforce existing opinions about the requirements on directors to disclose climate-related risks. In 2016, a legal opinion published by leading commercial barristers found that Australian corporate law already required directors to assess and disclose climate risks as part of their duties under various sections of the Corporations Act 2001 (Cth). In that opinion, lead author Noel Hutley SC said, "It is likely to be only a matter of time before we see litigation against a director who has failed to perceive, disclose or take steps in relation to a 74
|
“[It's] only a matter of time before we see litigation against a director who has failed to perceive, disclose or take steps in relation to a foreseeable climate-related risk.” Noel Hutley SC
foreseeable climate-related risk that can be demonstrated to have caused harm to a company”. Just as Hutley predicted, in July 2018, Mark McVeigh, 23, sued his retirement savings fund (Retail Employees Superannuation, or “REST”) alleging that it had failed to adequately consider and disclose its climate risks, and had thereby breached provisions of both the Corporations Act and the Superannuation Industry (Supervision) Act 1993 (Cth) requiring directors and trustees, respectively, to exercise due
care, skill and diligence in the exercise of their roles, and to act in the best interests of a person in McVeigh’s position. (In Australia, retirement saving funds are generally known as “superannuation” funds.) McVeigh specifically referred to the TCFD recommendations, arguing that “a prudent superannuation trustee … would have … ensured that the processes it has in place for managing investments and disclosing REST’s climate change business risks to beneficiaries complied with the recommendations of the Task Force on Climate-related Financial Disclosures.” He then alleged that, “[a]t no material time has REST set in place processes or taken the steps necessary to enable its officers to inform its Board of Directors, or the Board’s Investment Committee, about REST’s climate change business risks in accordance with the recommendations of the TFCD.” In an interlocutory ruling in January, the Federal Court of Australia said the case “appears to raise a socially significant issue about the role of superannuation trusts and trustees in the current public controversy about climate change.” (McVeigh v Retail Employees Superannuation Pty Ltd [2019] FCA 14). The legal duties on directors and trustees with respect to understanding and disclosing their companies’ climate change-related risks and opportunities continue to solidify. At the time of writing, Australian regulators, including the Australian Securities and Investments Commission, the ASX, and the Australian Accounting Standards Bureau, have each made clear that they consider climate risk to be a material factor for companies to assess and disclose where appropriate.
Exxon sued over climate disclosures As investors grow more attuned to climate risks, they are demanding greater detail about how companies are measuring and accounting for those risks, and are scrutinising the
Photo: Matt Artz/Unsplash; Coast-to-Coast;iStock
I L L U M I N AT I O N
A P R I L 2 0 19
p70-75_Essay05_ClimateChange_AJ04.indd 74
28/3/19 5:58 pm
I L L U M I N AT I O N
responses. A 2018 case brought by the New York Attorney General alleges that Exxon Mobil Corporation made fraudulent representations relating to its climate risk disclosures and argues that this conduct violated the Martin Act of 1921 – a state law originally enacted to combat crime on Wall Street. Unlike previous climate lawsuits lodged by various municipalities against major oil companies, this case is not about the causes of or responsibility for climate change and its consequences. Rather, as the New York Times editorial board put in a November 2018 column titled, “Is Exxon Conning Its Investors?”, the suit is a “straightforward shareholder fraud case”. The gist of the suit is that, “Exxon provided false and misleading assurances that it is effectively managing the economic risks posed to its business by the increasingly stringent policies and regulations that it expects governments to adopt to address climate change.” (New York Attorney General v Exxon Mobil Corporation, 452044/2018, Complaint filed 24/10/2018). In particular, New York alleges that, even as Exxon claimed publicly that it was applying an internal predicted, or “proxy”, cost in order to determine how those policies and regulations would affect its business, in fact, its public claims did not match its internal processes with respect to how it accounted for the likely value of
assets that emit greenhouse gases. The alleged effect was to deceive investors about the risks to Exxon’s assets, and to avoid having to take multi-billion-dollar write-downs on those assets. Exxon has denied these allegations. A trial is scheduled for October. Especially noteworthy is that two of New York’s large pension funds are Exxon investors, and had been active in demanding information relating to its climate disclosures from Exxon in advance of this lawsuit. US pension funds have historically been influential in trends to divest from other contentious sectors, such as tobacco, and some are indicating they may do the same with respect to fossil fuels.
Conclusion
Legal systems around the world are addressing climate change in rapidly evolving ways. There are many fascinating cases in addition to those we have discussed in this article. For instance, following catastrophic wildfires in 2017 and 2018, California’s energy giant, Pacific Oil and Gas, has declared bankruptcy due to tens of billions of dollars of potential liability for its alleged role in causing those fires. Commentators have called it the world’s first climate change bankruptcy, but probably not the last. We expect to see novel arguments relating to whether, and to what extent, a single company can be held responsible for “causing” fires in the context of climate change.
The purpose of this article, however, was to demonstrate that climate change can also be tackled within traditional legal frameworks and that plaintiffs are increasingly availing themselves of these avenues – so far with some degree of success. Viewed that way, the parallels with tobacco litigation may be even more instructive. Originally seen as too difficult to litigate, tobacco cases, like climate lawsuits, were plagued with problems of evidence and causation. The tobacco industry fought back with sophisticated squads of lawyers, lobbyists and scientists – similar to what we have seen from the fossil fuel industry. However, litigants also grew increasingly sophisticated and turned to traditional legal arguments that focused on the burden tobacco put on public health systems. These arguments ultimately prevailed, culminating in the 1998 “Global Settlement” between 46 state attorneys-general and the four major tobacco companies, which allowed the states to recover $206 billion in public health expenses. Increasingly, advocates are also framing climate change as a public health issue, pointing to the strain that pollution, heat, increased diseases and other effects are having on public health systems. As former California governor Arnold Schwarzenegger said at a conference in Los Angeles last year, “You can talk about climate change and … what is going to happen in the future if you continue … relying so much on fossil fuels … but don’t forget to talk about the health aspect, and don’t forget to talk about the aspect that many people die every year because of pollution.” Martijn Widler AM is Head of Baker McKenzie's Global Environmental Markets and Climate Change practice, Adjunct Professor of Climate Change Law at the Australian National University, Chair of WWF (Australia), Chair of the Australian Renewable Energy Agency and a Director of the Climate Council. Sharona Coutts is a graduate lawyer with Baker McKenzie and fomer investigative reporter and editor.
A P R I L 2 0 19
p70-75_Essay05_ClimateChange_AJ04.indd 75
|
75
28/3/19 5:58 pm
C A R E E R | W E L L N E S S | T R AV E L
QUIET POWER
Want more from your team? Tap into the talent of introverts It’s time to start valuing the introverts in your team, writes PETER AGNEW.
76
|
W
orkplaces, the way we meet, the way we teach, and the way we interact in a team are designed for extroverts. Open plan, group brainstorming, team projects and high-profile “celebrity” leaders are all part of the rise of the “extrovert ideal”, which is growing in contemporary society. This tendency is permeating our culture to the detriment of introverts and impedes their significant contribution to our teams, workplaces and lives. Introverts usually prefer listening; they innovate and create, dislike self-promotion, and favour working on their own rather than working in teams. So how do we capitalise on the strengths of introverts and create a balance in our workplace? I spend a lot of time developing people’s skills to help them better understand each other’s behavioural style when interacting. I work with loud, ambitious groups; the quieter, softer-spoken groups; and the groups with a strong mix of both outspoken and under-spoken behaviour styles.
Illustrations: Dmi+T/iStock
Limitless
A P R I L 2 0 19
p76-77_Career_Advice_AJ04.indd 76
28/3/19 5:59 pm
C AREER
The “extrovert ideal” is one I find strongly encouraged in most workplaces. We are subliminally and explicitly encouraged to be “open” and generate charisma, to exude confidence, and to never admit “loner” tendencies or shyness. Susan Cain’s excellent bestseller "Quiet: The Power of Introverts in a World that Can’t Stop Talking" takes on, and then effectively dismantles, this mythos.
Loss of insight
Cain makes a convincing case that we undervalue introverts to such a degree that we lose an enormous amount of valuable insight that only they can provide. Consider the last meeting you attended. While you might think everyone’s voice was heard, very often it is only the loudest, extroverted attendees who contribute when gathered around a conference table. Few meeting organisers have learned to reach out to introverts by encouraging written ideas and contributions. As a result, we all pay the price by missing out on valuable input that is often more considered in nature. I agree with Cain’s argument that we undervalue introverts, but I also believe that it is worthwhile helping
LIMITLESS
introverts to become more outgoing. I encourage them to step up and be commanding and pioneering from time to time, particularly if aspects of their job require some of these behaviours. I would also argue that some introverted tendencies are necessary in top executives, and I spend just as much time teaching “celebrity” leaders to be more humble, less outspoken, and more considered in their decision making. While it is tempting to think of introversion and extroversion as two groups into which we can neatly sort everyone, that is not the case. Here’s the key – introversion is not a synonym for “shy” and extroversion is not a synonym for “outgoing”.
How to work better with introverts •
•
•
“Here’s the key – introversion is not a synonym for 'shy' and extroversion is not a synonym for ‘outgoing’.”
|
• •
•
Understand that introverts thrive in environments that are not overstimulating; surroundings in which they can think before they speak. If you want to get the best in a brainstorm session with your team, don’t simply throw them into a meeting and assume you’re hearing everyone’s ideas. Allow people to work alone first with workshop agendas or questions before coming to work in a group. Introverts are careful, reflective thinkers who can tolerate the solitude that idea-generation requires. Many creative people are introverts who are most creative in the quiet. Give your introverted staff the space they need. Be mindful that they may need to recharge while alone. Realise that our culture rightly admires risk-takers, but we need our “heed-takers” more than ever to ensure a balanced outcome. Recognise introversion as a strong and important personality trait for a healthy workplace.
Peter Agnew works for People Development Australia, a business that coaches leaders in professional service firms.
A P R I L 2 0 19
p76-77_Career_Advice_AJ04.indd 77
|
77
28/3/19 5:59 pm
|
C AREER
LEADERSHIP
Why true leaders know how to inspire their teams
True leaders know when inspiration is required and how to use it to lead. Being an inspiring leader isn’t about being some guru on a mountain, dispensing platitudes. It is about finding your own passion, and then breathing it out so others can breathe it in, writes PETER AGNEW.
78
|
W
hen the authors of the thought-provoking book The Work of Leaders asked 13,000 people to rate how inspiring they thought they were, fewer than one in five gave themselves the top score. Clearly, people who think they’re inspiring are in the minority, yet many leaders also overestimate their ability to rally the troops. Maybe there’s a problem with the definition. “Inspiration” sounds like something esoteric and guru-like, but it comes from the simplest of words: it’s Latin for “breathe in”. It’s worth thinking more simply about inspiration and about how you might harness its power to breathe life into your work and the work of those around you. If you want your teams to get on board with day-to-day tasks and the organisation’s goals and vision, inspiration is a crucial part of your job.
Photo: Bobby Coutu/iStock
LIMITLESS
A P R I L 2 0 19
p78-79_Career_Psyche_AJ04.indd 78
28/3/19 6:00 pm
C AREER
So what might inspiring leadership look like? In my organisation, we break inspiration down into two parts: being expressive and being encouraging. It’s sending the message, “You matter and this matters”.
Being expressive
This isn’t about loud cheerleading, it’s about expressing your thoughts and feelings in a genuine way so you convey and create emotional engagement. In Primal Leadership, Daniel Goleman, a pioneer in emotional intelligence, notes that employees tend to perceive the business environment through the eyes of their leaders. What that means is that the moods, opinions and actions of leaders will rub off on employees. A leader who expresses cynicism, uncertainty or pessimism will find those low energies reflected in the group. Does that mean leaders should be wildly positive at all times? No. Some leaders fear being “too optimistic”; they feel they are putting their credibility on the line or setting themselves up for a fall. Some feel that being lowenergy is more dignified, controlled – more businesslike. But there is a difference between being blindly optimistic and being inspiring. A leader who expresses optimism with confidence, even if it is just in the idea that things can improve, will find themselves surrounded by a much more inspired, can-do team.
“‘Inspiration’ sounds like something esoteric and gurulike, but it comes from the simplest of words: it’s Latin for ‘breathe in’.”
LIMITLESS
Being encouraging
Noted research psychologist John Gottman is able to predict whether couples will stay together with over 90 per cent accuracy just by analysing a three-minute video clip of a conversation between them. How? Because his research showed that couples with healthy relationships have a 5:1 ratio of positive exchanges to negative exchanges. Below 2:1 and the relationship almost always fails. Being encouraging is like putting deposits into the emotional bank account of your staff. Meeting deadlines, tough projects, jumping through hoops – these are often withdrawals from the emotional bank account. Without a high enough ratio of positive exchanges (deposits) to negatives (withdrawals) you will notice disengagement, loss of commitment, and people will opt out.
Want to inspire your colleagues?
1. Be clear in your own mind about why you do what you do, and about how amazing the results will be when you and your team reach the goals you have set. 2. Be aware of your body language and mood – is it rubbing off on your team? 3. Think about your own tendencies. Are you naturally optimistic or sceptical? If you tend to be sceptical, can you lift your game when energy is required? 4. What does your passion feel like? Can you describe it? What sparks it? 5. Do you express optimism and encouragement? People are not psychic and some do not know they are appreciated unless they’re told. Remember, feedback is reactive, encouragement proactive. 6. Set the agenda: find talking points that engage people emotionally, provide a common aspiration and come up with a rallying cry. 7. Consider your audience creatively: what encouragement can you give that your people really care about?
GIVING FEEDBACK
Career coach with Anna Hinder Dear Anna, I know I need to give more feedback to my team, but it is often so awful for everyone involved I've started to avoid it. What can I do? – Michael Giving feedback is not for the fainthearted. Most leaders have battle scars from a feedback conversation that went horribly wrong. It can be equally unpleasant for achievement-focused professionals to receive negative feedback, so it is not surprising these conversations are avoided. So, what to do? Organise your message. Before you jump in, think carefully about what the person did or didn't do, the situation where the behavior happened, and why change is needed. This three-part framework is called “situation-behaviour-impact”. Developed by the Centre for Creative Leadership, it works by helping the person recall the behavior and understand the benefits of changing. Steer clear of personal accusations that will create emotional reactions. Get to the point. Don't be tempted to sneak a feedback message into a conversation about general business, sport or the weather. Also avoid using the “sandwich technique”, where you start with a positive message, shove the negative feedback in the middle, and end on a positive note. There is no research to support this method, and perfectionists are likely to remember the negative rather than the positive. The alternative comes from 15 years of research by the Harvard Negotiation Project in a great book, Crucial Conversations. The authors found that describing your intent – “I'd like to give you some feedback on the document I reviewed yesterday. I've identified a couple of areas for improvement” – builds trust and prepares the person to hear your feedback without falling into the trap of a false compliment.
A P R I L 2 0 19
p78-79_Career_Psyche_AJ04.indd 79
|
|
79
28/3/19 6:00 pm
L I M I T L E S S | W E L L N E S S
WELLBEING
Back to our roots
Spending time among trees can offer humans access to the company of other living things like nothing else can, writes MELISSA COADE.
80
Photos from lef t to right: Jaco Blund/iStock ; Aluxum/iStock
S
tudies have shown that spending more time in nature can boost our overall happiness and wellbeing. The flipside is a growing understanding that humans are becoming more disconnected from nature. The symbol of a tree, with its abundant foliage resting across long branches and complex root system tunnelling into the earth, has had an enduring place in human history. As plant science expert Jonathan Drori describes, several cultures consider trees to possess a certain sacred quality. He points to their beauty and ability to adapt to different environments as being revered across the globe – from India’s banyan tree to the fragrant cedar of Lebanon, they are diverse and inspiring. What is it about a living tree that enlivens our senses and inspires the spirit in a way the urban environment struggles to replicate? And why are we losing a grip on this essential connection to the natural world?
| A P R I L 2 0 19
p80-81_Wellness_Nature_AJ04.indd 80
28/3/19 6:01 pm
Photos from lef t to right: Jaco Blund/iStock ; Aluxum/iStock
WELLNE SS | LIMITLESS
Healing that hollow feeling
‘Nature-deficit disorder’, a term coined by US writer Richard Louv in his 2005 book The Last Child in the Woods, twigged on to the idea that modern life was making people suffer because their daily tasks were disconnecting them from nature. Since, famous personalities including the likes of Dame Judi Dench have thrown their weight behind the benefits of more time spent under wild canopies. The iconoclast spent a year filming her own television programme through the changing seasons in Surrey, England, in a bid to show the feelings and community of sprawling woodlands. Wilderness resorts in the US now also offer ‘forest bathing’ sessions, based on the Japanese tradition of shinrin-yoku, to tap into the special power of trees to lift moods and soothe the soul. Trees may prove a real solution for urbanites who are lacking connections with nature, according to Shelby Gull Laird. The environmental scientist, who is an adjunct researcher at Charles Sturt University, analysed several studies to find that a range of ailments ranging from anxiety, depression and ADHD could be improved with exposure to nature. Considered to be a new line of research, which took off in the 1980s, the proven benefits of being connected to
“What is it about a living tree that enlivens our senses and inspires the spirit in a way the urban environment struggles to replicate?”
nature goes further. Health and ecology studies have also shown that walking in nature can help restore concentration and even lower blood pressure.
Seeing the wood from the trees
Crucially, Gull Laird observed that participants from various studies were negatively impacted, mentally and physically, when they suffered long times away from nature. Writing for The Conversation, she asked why there was no rigorous public messaging campaign underway to urge adults and children to get “back outside”. It was baffling, she said, given the sheer volume of studies that showed “the miracle cure of nature”. The same conclusion was reached by a Norwegian evaluation of some 50 relevant empirical studies in 2009. The concern is that as more of us move to cities and opt into high-density living arrangements, our dislocation from nature will worsen. Considering this an apparent yearning for more time with nature, what can you do to get more trees into your life? Gull Laird offers seven easy tips anyone can follow to reconnect with their roots: • Bring a plant into work and keep it at your desk • Get your hands dirty with a spot of gardening • Plant a tree • Choose pathways that wind through parks instead of around them • Ask your local council to planta street tree outside the office window • When visiting parks with kids, play in natural sections as well as on the equipment • Spend time sitting under a tree (and if you’re so inclined, give it a hug!)
The more exposure, the better
Urban ecology experts from the University of Sydney also argue that design and planning for urban nature has become extremely important. In a 2015 paper for Urban Ecosystems, academics Lucy Taylor and Dieter Hochuli suggested that small
Singapore's office in a garden Designed as a luxury hotel and office in a garden, PARKROYAL in Singapore, incorporates 15,000 m2 of elevated terraced gardens. It represents an architectural trend where urban buildings try to evoke the natural environment.
changes to concrete jungles could have a huge positive impact on the lives of city dwellers. For example, they cited a local study published that same year, which used neuroscience techniques to prove that just glancing at a green roof was more restorative for people than glancing at a concrete roof. While a light-filled atrium or desk plant can be effective in boosting workers’ sense of connectedness, Taylor and Hochuli say those benefits paled in comparison to time spent in a real park. They add that that optimum restorative surrounds should be interesting, nonthreatening and realistic. Based on the Attention Restoration Theory (ART), which explains humans require an experience that is altogether different in order to restore, they recommend getting out of the office and finding a park with trees or a fountain. Perhaps your next meeting could coincide with a walk through a park or be hosted in a room with a view of the trees? Just a glimpse of the tree tops could be enough to boost the sub-cortical arousal and cortical attention control of your meeting attendees. At the very least, it will make them happier. g
A P R I L 2 0 19 |
p80-81_Wellness_Nature_AJ04.indd 81
81
28/3/19 6:01 pm
LIMITLESS
|
T R AV E L
DREAM DESTINATION
Making sense in luxury
The Landmark Mandarin Hotel is one of Hong Kong’s most luxurious properties. JANE SOUTHWARD dips her toe into the lifestyle of the rich and famous.
82
|
Restaurants list this year and where main meals start from A$140. The dining tables at Amber sit beneath a stunning light sculpture made of 450 hanging brass rods – amber in colour, of course. Goodness knows how they will top the décor when it reopens with a new look in April. The hotel’s funkiest offering is a New York-style bar called Please Don’t Tell (PDT), which you enter through a secret wall in a vintage phone booth. Again, cute, but certainly not sensible. The Landmark Mandarin Oriental is younger, smaller and more private than its sister property, the Mandarin Oriental, which opened in 1963 and is just an air-conditioned skybridge and a couple of shopping centres away. Built in 2005, the Landmark Oriental has 111 rooms (compared with 500-plus in the Mandarin Oriental) and has been designed as an urban oasis. The view from the corner suite is into an office block, which brings your focus back to the room and its many luxuries. The L600 suite is one of the largest hotel rooms in Hong Kong and costs about A$1,000 a night, including breakfast at either Amber or Mo bar on street level, which serves a comprehensive buffet each morning, including a whole ham, Chinese dumplings, and eggs just about
The dining tables at Amber sit beneath a stunning light sculpture made of 450 hanging brass rods – amber in colour, of course.
Photos: Landmark Mandarin Hotel
T
he idea of staying in a luxury hotel in a shopping centre isn’t the stuff of dreams for all, but the Landmark Mandarin Oriental in Hong Kong might change your mind about sleeping near checkouts. Hong Kong, with a population of 7 million-plus crammed together mostly in high-rise buildings, brings new meaning to the word “manic”. And most of the time the city is hot – over 30 degrees on average for six months of the year. So, a hotel connected to shops and restaurants and raised airconditioned walkways to the efficient MTR underground railway and ferries on gorgeous Victoria Harbour starts to make sense. Not that sensible is what comes to mind when you see the shiny diamante dresser in the VIP entry to Dior in the hotel foyer. Also wildly over the top is the two-storey spa with its curved marble day beds heated to 37 degrees, a Roman-style dry sauna known as a laconium, and dimly lit steam room with giant purple amethyst crystal from which the soothing steam rises. Eating is an art at the Landmark Mandarin Oriental, which has three restaurants and bars, including the two Michelin star Amber, which claimed seventh spot in the Asia Best
A P R I L 2 0 19
p82-83_Travel_DreamDest_AJ04.indd 82
28/3/19 6:02 pm
T R AV E L
Food too pretty to eat at Amber Restaurant.
For a soothing body massage,
|
LIMITLESS
any way you could imagine, plus everything else you would expect from a five-star buffet. The suite has four components – a coffee station, a lounge area in which Jing tea in a tiny glass teapot and a selection of biscuits are left each day, a king bed with a second TV and walk-in robe. Then there is the standout item – a large bathroom with seven-foot round bath, separate shower and Bose speakers. A nice touch was when the maid discovered my book had dog-eared pages and kindly left a signature bookmark shaped as a fan in my book. Another was the jam tart and lemonade left in a marble-lined cooling glass display case, which went down well after a few hours sightseeing. Another was the two cocktails (a rose petal martini and a daiquiri) left by the bath, which had been drawn for me with bubbles and candles while I was in the bar. It costs $A120 for this service. However, the ultimate in luxury here has to be the spa. Just three guests at a time are allowed to swim in the 20-metre indoor pool on the lower level of the two-storey complex. Upstairs are 15 treatment rooms for luxurious spa offerings using a range of products, including Sodashi from Australia. If you don’t have time or the money to indulge, try the hot and cold treatment zones, which are free to hotel guests. There’s a large heated pool with air jets coming through steel beds for a soothing body massage, two showers with different coloured lights and jets at various pressures and temperatures (one jet smelled of mint and is designed as a pick-me-up for weary travellers), and a dark relaxation room with eight plush beds, headphones with a range of relaxing music, snacks and tea to help you refuel for the real world outside. That is if you ever leave the hotel.
try the large heated pool with air jets coming through steel beds.
The author stayed as a guest of the Landmark Mandarin Oriental.
A P R I L 2 0 19
p82-83_Travel_DreamDest_AJ04.indd 83
|
83
28/3/19 6:02 pm
|
T R AV E L
1
CITY GUIDE
Hong Kong
"City of contrasts" is an understated way to describe this metropolis of 7.4 million people with its 350-plus skyscrapers and 227 Michelin-starred restaurants. JANE SOUTHWARD reports on five things you must do in the city that will host the 32nd LAWASIA conference in November.
Aerial view of Victoria Harbour, with the landmark International Finance Centre piercing the skyline.
84
|
Splash out on a hotel
Hong Kong Island or Kowloon? Where to stay is a key decision and each option has advantages. If you are working, staying on the island makes more sense and many argue that, even for a holiday, Hong Kong Island has more atmosphere. Kowloon, however, can offer terrific views back to the island, though does have a more industrial feel. As one lawyer who lives near Mongkok explained, Kowloon seems more genuine. Whatever your decision, make sure your hotel is near the MTR underground rail system, which is cheap, efficient and far less manic than taking taxis to appointments. The Mandarin Oriental takes pride of place near the water on Hong Kong Island. With 501 rooms, including 67 suites, this luxury hotel used to be right on Victoria Harbour before land was reclaimed to create more space. Even if you don’t stay there, make time to check out the gorgeous Venetian glass chandeliers in the foyer and, if you feel like splashing out, head to M Bar on level 24 at dusk to watch the city light up. Rooms start from about A$600. Through a couple of upmarket shopping malls with walkways above the busy roads below is the sister property Landmark Mandarin Hotel. On Kowloon, the Peninsula, with its popular high tea offering, is right on the water. It was the first five-star hotel built in Hong Kong. Also on the Kowloon side is the Kerry Hotel, which isn’t as well known but has the same terrific view, a first-class spa, and a bar called Red Sugar, which is a must at dusk. Rooms overlooking the harbour start from A$400. A couple of MTR stops further from the water is the Cordis Hotel, which is right in the thick of things in Kowloon and linked to another shopping mall. The rooms are compact but the service and offering in the Club lounge (24hour office services, private breakfast buffet and snacks throughout the day, plus free drinks and buffet from 6-8pm) make it a good deal from A$500. The Cordis also has a terrific spa and open-
Photos from lef t to right: Zora Zhuang/iStock; Jason Cooper/Unsplash
LIMITLESS
A P R I L 2 0 19
p84-87_Travel_CityGuide_AJ04.indd 84
28/3/19 6:03 pm
T R AV E L
The Big Buddha, located on Lantau Island, Hong Kong.
2
Eat big
Hong Kong has eight restaurants with three Michelin stars and another 227 restaurants with one or two Michelin stars, which is an indication of the indulgent food offerings in the city. By comparison, London has a similar population and 77 Michelin star restaurants. One of the best bargains in Hong Kong is Ming Court, a dumpling restaurant that has maintained one Michelin star for 10 years, yet is unassuming and tucked away on level 6 of the Cordis Hotel. The atmosphere is pure elegance, from the black and copper resin place setters to the pottery around the room (copies of artifacts dating back 2,000 years that were
found when the hotel was built), to the courteous and unrushed service. For about A$24, you can sample jasmine tea and a trio of dumplings, including one topped with a gold leaf and filled with scallops and chopped zucchini. The wine list is what you’d expect in a fivestar locale, with bottles of Australian white from A$70. But avoid the booze and dive into the delicate samplers for a fine experience capped off with a custard dumpling – light dough filled with steaming, yellow custard. If you really want to splash out, dine at the Mandarin Grill + Bar and Grill, which is more like a spacious private dining room than a “grill” and has incredible décor (they change the chair coverings with the seasons) and stunning food, including oysters flown in from eight countries and many ingredients sourced from Japan because the chef thinks they are the best. The wine list will knock you over (and not
Take to the water
They used to say a trip on Victoria Harbour on the Star Ferry that links the island with Kowloon was the cheapest and best tourist offering in the city. Do it at dusk as the lights come on, and it’s probably still true. If you want a longer ferry ride and some peace, take a ferry to Lamma Island. Lamma used to be a fishing island and there’s still evidence of this, as well as some well-priced and lively seafood restaurants. However, it’s the chance to hike with butterflies flying around you on the 70-minute “Family Trail” from one side of the island to the other that makes this a gem. There are great beach views, too, but look away when you spot the huge power station on one side of the island. For a chance to see Hong Kong above the water, take the MTR to Tung Chung station on Lantau Island (near the airport), then a 25-minute gondola ride over the water and bushland to the Big Buddha. The bronze figure is 34 metres tall and there’s a temple, monastery, and vegetarian restaurants nearby. It’s best to pre-purchase the gondola tickets (you can take a bus or a taxi but the road is windy) and head there early to avoid the crowds. Try the discount website klook.com for tickets.
A P R I L 2 0 19
p84-87_Travel_CityGuide_AJ04.indd 85
LIMITLESS
just for the price) and main meals cost about A$140. If you want an Australian connection and something more affordable in the funky Soho area on the island, Sydney chef Fabio Nicotra, ex Merivale, leads the team at 121 BC, serving an Italian menu. Meals start from about A$30. For a two-Michelin-star experience at the other end of the price spectrum, but one you won’t forget, try the Landmark Mandarin’s stylish restaurant Amber for breakfast, lunch or dinner. The décor alone will have you talking long after your meal and it is being refurbished over the summer to reopen in April. Visit: cordishotels.com/ en/hong-kong; restaurants-and-bars/mingcourt; 121bc.com.hk; amberhongkong.com
3
air rooftop pool. Visit: mandarinoriental. com; mandarinoriental.com/landmark; peninsula.com; shangri-la.com/hongkong/ kerry; cordishotels.com/en/hong-kong
|
|
85
28/3/19 6:03 pm
LIMITLESS
|
T R AV E L
Island makes it worthwhile, and you can sit outside, which is a relief after hours in air-conditioning. If you want to try Asia’s fifth-best bar (according to Asia’s 50 Best Bars list) head to mid-levels at Aberdeen Street near Central for a liquid treat at Old Man. Visit: landmark.hk/dining/m-bar; ritzcarlton.com/en/hotels/china/hong-kong/ dining/ozone; theoldmanhk.com
Red Sugar Terrace at the Kerry Hotel – on the Kowloon side – overlooking the harbour.
“If ever there is a city that celebrates cocktails, this is it.” 4
Drink up
If ever there is a city that celebrates cocktails, this is it. The offerings are staggering, and not just for the A$30-plus price. At M Bar in the Mandarin Oriental, your drinks come with toasted nuts and dehydrated okra that has a crunch and saltiness that can be addictive. At Ozone Bar on the 118th floor of the Ritz-Carlton on the Kowloon side, cocktails and the chance to boast that you have had a drink in the highest bar in the world cost $A35. There are terrific views across to the island, too. A midi of Sapporo beer at Hexa, an elegant bar at the end of the Harbour City shopping mall, will set you back A$27. The view back to Hong Kong 86
|
M Bar in the Mandarin Oriental.
Hong Kong skyline at night.
Indulge
With the crazy pace of the streets outside, retreating to a spa may be just the ticket, and with so many five-star hotels in the city, the spa offering is competitive however not cheap. You can find an hour’s reflexology for about A$30, but if you want true indulgence, make time for a classy hotel experience. Many hotels offer spa deals for their guests – a complimentary 30-minute treatment, for example. Book ahead and make time to relax in the sauna and steam room or hotel pool before and after your treatment. For about A$70 (weekdays) and A$90 (weekends) you can spend a full day at the Kerry Hotel, which is part of the Shangri-La group, indulging in the infinity pool overlooking Victoria Harbour and lazing on the lounges on the sun deck (with the same stunning view). The Kerry also has a small but classy spa. The De-aging Yoghurt Body treatment (A$160 for an hour) includes skin brushing then a luxurious wrap, and a light massage that will leave your skin renewed and your soul soaring. Chuan Spa at the Cordis, linked to the Chuan Spa at the Langham Hotel in Sydney, is a larger retreat worth your time. It won the 2018 Luxury Spa Award for Australia and Oceania in the World Luxury Spa Awards based on votes from users. The range of treatments is staggering and, as like most spa treatments in five-star hotels in Hong Kong, the services aren’t cheap, so team your indulgence with an hour or two in the steam room and sauna plus a swim in the open-air rooftop pool to add value.
Photos from top to bottom: Kerry Hotel; Mandarin Oriental; Rodho/iStock
5
A P R I L 2 0 19
p84-87_Travel_CityGuide_AJ04.indd 86
28/3/19 6:03 pm
AJ04_A
T R AV E L
|
LIMITLESS
Join LAWASIA's new Young Lawyers Committee today. www.lawasia.asn.au/membership
A P R I L 2 0 19
AJ04_Apr-2019_HouseAds.indd 7 p84-87_Travel_CityGuide_AJ04.indd 87
|
87
28/3/19 4:47 pm 28/3/19 6:03 pm
LAWASIA
Since its inception in 1966, LAWASIA has fought for the rule of law, protected human rights, and expanded business opportunities across the Asia Pacific.
Afghanistan Australia Bangladesh Brunei Darussalam Cambodia China England & Wales Fiji Germany Hong Kong SAR India Indonesia Israel Japan Macau SAR Malaysia Mongolia Nepal New Zealand Pakistan Philippines Republic of Korea Russian Federation Samoa Singapore Sri Lanka Taiwan Thailand United States Vietnam
Sections
Business Law Section business.chair@lawasia.asn.au Business Law Subcommittees Alternative Dispute Resolution Anti-Trust & Competition Law Asia-Europe Banking & Finance Communications, Technology & Data Protection Corporate Securities & Investment Energy & Resources Environmental Law Franchising Insolvency Law Intellectual Property
88
|
One Belt, One Road Real Estate & Transactions Taxation Family Law & Family Rights Section: family.chair@lawasia.asn.au Human Rights Section: humanrights.chair@ lawasia.asn.au Judicial Section*: judicial.chair@lawasia.asn.au Law Management Section: lawmgt.chair@lawasia.asn.au *Open to members of the judiciary only.
Committees
Constitutional and Rule of Law Committee: conlaw.chair@lawasia.asn.au Criminal Law Committee: crimlaw.chair@lawasia.asn.au Employment Law Committee: emplaw.chair@lawasia.asn.au Legal Professional Indemnity Insurance Committee: pii.chair@lawasia.asn.au Moot Competition Committee: moot.chair@lawasia.asn.au South Pacific Committee: business.chair@lawasia.asn.au Young Lawyers Committee: younglawyers.chair@ lawasia.asn.au
2018–2019 Executive Committee
President Christopher Leong (MALAYSIA) President-Elect Chunghwan Choi (REPUBLIC OF KOREA) Immediate Past President Prashant Kumar (INDIA) Vice Presidents Justin Dowd (AUSTRALIA) Melissa Pang (HONG KONG SAR) Shyam Divan (INDIA)
Committee Members Gordon Hughes AM (AUSTRALIA) Yin Baohu (CHINA) Yap Teong Liang (SINGAPORE) Isomi Suzuki (JAPAN) Chisako Takaya (JAPAN) Eric Eunyong Yang (REPUBLIC OF KOREA) Steven Thiru (MALAYSIA) Edgar Tariella (PHILIPPINES) Upul Jayasuriya (SRI LANKA) Secretary-General Michael Tidball (LAWASIA)
Secretariat
Head Office Suite 1101, Level 11 170 Phillip Street Sydney NSW 2000 AUSTRALIA Phone +61 2 9926 0165 Fax +61 2 9923 9652 Email lawasia@lawasia.asn.au Website lawasia.asn.au Secretary-General Michael Tidball General Manager Magdalena Malota magdalena.malota@ lawasia.asn.au Membership & Administration Officer Kim Shazell lawasia@lawasia.asn.au Conference & Events Manager Magda Imre conference@lawasia.asn.au Conference & Events Coordinator Shanna Venter conference@lawasia.asn.au Communications & Marketing Coordinator Julie Do lawasia@lawasia.asn.au
Photo: King Rodriguez/PCOO
Member Jurisdictions
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 88
28/3/19 6:04 pm
L AWA S I A
STATEMENT
LAWASIA condemns violence against lawyers LAWASIA issues a statement of concern on the continuing violence and threats of violence against lawyers in the Philippines.
Attorney Benjamin Ramos is the 34th lawyer killed since since President Rodrigo Duterte took office in 2016. Source: NUPL
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 89
|
89
28/3/19 6:04 pm
L AWA S I A
O
90
|
Raising the Philippine Flag during the ceremonies marking the 115th Independence Day.
Basic Principles on the Role of Lawyers, which state: 16 – Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics; and 17 – Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. LAWASIA also draws attention to the right to life and security of person guaranteed by Article 3 of the Universal Declaration of Human Rights, as well as Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the Philippines has been a party since 1986. Under the ICCPR, the ‘obligation of State parties to respect and ensure the right to life extends to
reasonably foreseeable threats and lifethreatening situations that can result in loss of life’. LAWASIA also notes the obligation under the United Nations Declaration on Human Rights Defenders (UNDHRD) that States guarantee the adequate protection of human rights defenders. Namely, States must act to "ensure the protection by the competent authorities of [human rights defenders] … against any violence, threats [or] retaliation … as a consequence of his or her legitimate exercise of the rights referred to in the UNDHRD". LAWASIA applauds the exemplary courage displayed by members of the Integrated Bar of the Philippines in discharging their duties to uphold the rule of law in adverse circumstances. LAWASIA calls on authorities in Philippines to take immediate action against these killings, including establishing prompt and impartial investigations to ensure perpetrators are brought to justice and to ensure the safety of legal professionals and human rights defenders in the country is safeguarded.
Photos (clockwise from lef t to right): h3k27/iStock; HazteOir.org/Flickr; Vivek Ravikumar
n 23 November 2018, LAWASIA issued a statement expressing deep concern over the continuous violence and threats of violence faced by legal professionals in the Philippines and called on the government to play a stronger role in protecting members of the legal profession. LAWASIA noted reports of 34 legal professionals killed over the last two years in the Philippines, a list which includes three judges and seven prosecutors. The most recent being the reported death of attorney Benjamin Ramos on 6 November 2018, who was murdered in the Philippines by unnamed gunmen as he was leaving his workplace. As a founding member of the National Union of People’s Lawyers, Ramos was engaged in pro-bono work for environmentalists, activists and political prisoners, and the families of those alleged to be targeted by the police, soldiers and other authorities. LAWASIA considers any assault on members of the legal profession to be a direct affront to the rule of law and to the administration of justice. The rights and duties of members of the legal profession to perform their professional functions and work towards protecting and promoting the rule of law, administration of justice, and human rights is fundamental to any justice delivery system. LAWASIA draws attention to Articles 16 and 17 of the United Nations
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 90
28/3/19 6:04 pm
L AWA S I A
STATEMENT
Asia Bibi treatment condemned
LAWASIA issues a statement of concern regarding the acquittal of Asia Bibi and violent protests in Pakistan.
L
AWASIA notes that, on 31 October 2018, the Supreme Court of Pakistan acquitted Asia Bibi of blasphemy charges and overturned the death sentence which had been imposed by the Lahore High Court. LAWASIA expresses its deep concern over violent protests that have subsequently spread across Pakistan in response to the landmark ruling by the Supreme Court. Death threats from the protesters have put the lives of many in jeopardy, including Asia Bibi, her family and lawyers, as well as the judges who delivered the verdict. LAWASIA is concerned that the protests have delayed Asia Bibi’s release, given that Ms Bibi has served the better part of nine years in solitary
“Death threats from the protesters have put the lives of many in jeopardy, including Asia Bibi, her family and lawyers, as well as the judges who delivered the verdict.”
From top to bottom: The daughter and husband of Asia Bibi; Mr Saiful Mulook, Ms Bibi's lawyer; Prayer vigil for Asia Bibi at the Embassy of Pakistan in Madrid.
confinement. Amid growing violence and threats to his life, LAWASIA is further dismayed that Ms Bibi’s lawyer, Mr Saiful Mulook, has been forced to leave the country. LAWASIA considers the violent demonstrations against the order of the Supreme Court to be an affront to the rule of law and the administration of justice in Pakistan. The rights of the acquitted, Asia Bibi, have been seriously threatened, as have the rights of her family and members of the legal profession. LAWASIA draws attention to the rule of law as embedded in the Preamble to the Universal Declaration of Human Rights (UDHR), by virtue of which Asia Bibi’s acquittal by the Supreme Court of Pakistan must be fully implemented. LAWASIA also draws attention to the right to life and security of person guaranteed by Article 3 of the UDHR, as well as by Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan has been a party since 2010. Under the ICCPR, "the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and lifethreatening situations that can result in loss of life". In addition, in regard to threats made to lawyers and judges, LAWASIA draws attention to Article 17 of the UN Basic Principles on the Role of Lawyers, which states: Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. LAWASIA recognises the exemplary courage displayed by members of the Pakistan Bar and the judges in discharging their duties and in upholding the rule of law in adverse circumstances. LAWASIA calls on the Pakistani authorities to ensure the safe release from incarceration of Asia Bibi, and to ensure the protection of all individuals concerned, including Asia Bibi, her family, her lawyers and the judges.
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 91
|
91
28/3/19 6:05 pm
L AWA S I A
RESOLUTION
Death penalty resolution
LAWASIA takes actions on the death penalty within the Asia-Pacific region.
Background
A. LAWASIA's objectives include the promotion of “the administration of justice, the protection of human rights and the maintenance of the rule of law within the Region”. B. “The Region” is defined in the LAWASIA Constitution as being such jurisdictions and territories as are or may become regional or associate members of the United Nations Economic and Social Commission for Asia and the Pacific (“ESCAP”). C. Numerous conventions and treaties adopted or sponsored by the United Nations, including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, strongly discourage capital punishment. D. On 18 December 2014, the United Nations General Assembly adopted Resolution 69/186 which called for a moratorium on capital punishment, with a view to the ultimate abolition of the death penalty, on the basis that a moratorium would contribute to “respect for human dignity and to the enhancement and progressive development of human rights”. E. LAWASIA notes that, notwithstanding a variety of cultures, religions and traditions, 135 Member States of the United Nations (68% of Member States) and 43 ESCAP jurisdictions (72% of ESCAP jurisdictions) have abolished the death penalty in law or in practice. 92
|
F. LAWASIA is mindful of the impact of crime on victims and takes into account the resolutions of the United Nations General Assembly, including the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted in 1985 (A/RES/40/34), as well as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 (A/RES/60/147). G. LAWASIA notes with concern that the reintroduction of the death penalty is under consideration in some jurisdictions. It also notes that some jurisdictions which retain the death penalty are, nevertheless, reducing the circumstances in which it may be applied.
Resolution
The LAWASIA Council: (a) calls on governments in the ESCAP region which currently retain the death penalty to review their respective policies on capital punishment; and (b) calls for a moratorium on the implementation of the death penalty in any jurisdiction or territory in the ESCAP region which is in the process of undertaking a review of its policy on the death penalty. Resolved by the LAWASIA Council on 2 November 2018 in Siem Reap, Cambodia.
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 92
28/3/19 6:05 pm
L AWA S I A
EVENT
Human rights on the agenda in India The 1st Human Rights Conference was held in New Delhi in February. Hosted in association with the Bar Association of India, the conference was held at the Hyatt Regency Delhi and centred on the theme, “State Power, Business and Human Rights: Contemporary Challenges�. The conference explored a broad range of human rights issues of relevance in the Asia Pacific region, including gender, sexuality and human rights new technologies, privacy and mass surveillance; experiences and challenges of human rights lawyers; aggressive policing and human rights; freedom of the press in the digital age; cross-border migration and its conflicts; climate change, water conflicts and human rights; and business and human rights. The event was LAWASIA's inaugural Human Rights Conference, providing a unique opportunity for lawyers and associated professional members to exchange insights and expertise on topics of significant importance to all.
A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 93
|
93
28/3/19 6:05 pm
L AWA S I A
EVENT
Siem Reap conference
LAWASIA members from near and far gathered in Cambodia for the 31st LAWASIA Conference in November last year.
E
nvironmental crime, climate change refugees, foreign investment and influence in the Pacific, and the impact of artificial intelligence on the profession were just some of the topics debated and discussed over three days of packed sessions at the Hôtel Sofitel Angkor Phokeethra in Siem Reap in Cambodia. Poolside networking, cocktail events and visits to Angkor Wat punctuated long days spent in academic debate and the convivial forging of cross-border relationships. As LAWASIA President Christopher Leong of Malaysia said at the closing ceremony, “The days were long, the nights were longer.” While young lawyers and the environment were dominant themes at the conference, issues such as foreign influence and investment in the Pacific Islands, cross-border family law, international tax, and human rights were also popular topics. At the closing ceremony, LAWASIA SecretaryGeneral Michael Tidball was both reflective and focused on the future. “As the curtain goes down on this great conference, it will become a part of our history,” he said. “Throughout its 52 years, LAWASIA’s past has always been the bridge to its future. LAWASIA has kept true to its mandate. At its founding conference in 1966, the opening address stated as follows: ‘Within the region … we have one of the great areas where inspired change and development are making an enormous impact on vast numbers of human beings. Such great historic processes must and do stir society and produce the need for new legal reforms’. “This conference has seen a compelling energy. LAWASIA has momentum. We must now bridge, as custodians of the LAWASIA tradition, a clear path into the future.” g
94
| A P R I L 2 0 19
p88-95_Directory-Advocacy_AJ04.indd 94
28/3/19 6:06 pm
L AWA S I A
Upcoming
events
LAWASIA Risk Management & PII Conference
31 May – 1 June 2019 Hong Kong SAR www.piihongkong2019.com
LAWASIA Constitutional and Rule of Law Conference 23 – 24 August 2019 Yangon, Myanmar www.ruleoflaw2019.com
32nd LAWASIA Conference 5 – 8 November 2019 Hong Kong SAR www.lawasia2019.com
For further details, visit lawasia.asn.au/ conferences-and-events.
A P R I L 2 0 19 |
p88-95_Directory-Advocacy_AJ04.indd 95
95
28/3/19 6:06 pm
I N S P I R AT I O N
“He was not just a lawyer and a community organiser, he was, more importantly, a loving husband and a doting father to our three children. He taught them that those who did bad should be given a chance to change their ways for the better.” Statement from Ramos’ widow, Clarisa. BENJAMIN “BEN” RAMOS (1962-2018) Philippines lawyer and human rights defender
The dove is the symbol of the National Union of Peoples’ Lawyers, with which Ramos worked.
96
B
enjamin Ramos was SecretaryGeneral of the National Union of Peoples’ Lawyers (NUPL), an NGO which specialised in free representation of clients whose families were targeted by Philippines’ President Rodrigo Duterte’s deadly war on drugs. He also founded the Paghiliusa Development group, a farmers’ organisation. Last November, Ramos was the 34th lawyer to be killed since President Duterte came into power in 2016. By March of this year, that number rose to 38. The 56 year old was killed on the streets of Kabankalan, shot at close range by two unidentified men on a motorcycle. He was declared dead upon arrival to hospital. NUPL spokesperson Edre Olalia told The New York Times the group was disturbed by the deadly events of 6 November, but they remained unbowed. “We are shocked, devastated and enraged at the premeditated, cold-blooded murder of our colleague and fellow people’s lawyer,” Olalia said. During his career, Ramos represented a number of political prisoners including a group of university students known as the Mabinay 6 who were arrested in March 2018 following allegations that they clashed with government troopers. He also acted for the families of nine sugarcane farmers who had been killed in Sagay, Negros Occidental, in 2017 over land conflict. It is reported that Ramos was not paid for most of his cases, accepting bananas, fish, chicken, vegetables and Christmas lanterns in return for his legal services. According to Human Rights Watch, lawyers like Ramos, who represented the most marginalised people, have themselves also been victims of abuse. The NUPL claims that Ramos’ pro bono work had angered authorities, citing posters accusing Ramos of being a communist guerrilla. “Our members have been attacked and killed while literally practising their profession,” an NUPL statement read. g
| A P R I L 2 0 19
p96_Inspiration_AJ04.indd 96
29/3/19 2:08 pm
LAWASIA Risk Management & Professional Indemnity Insurance Conference 31 May – 1 June 2019 | Hong Kong SAR
REGISTER NOW at www.piihongkong2019.com
AJ04_Apr-2019_HouseAds.indd 3
28/3/19 4:46 pm
Coming soon ... A new way to stay informed. Thought-provoking content from Asia Pacific's leaders in law – when and how you want it.
AJ04_Apr-2019_HouseAds.indd 8
28/3/19 4:47 pm